PNP 1 WP7839-27.9.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7839 OF 2011 M/s. Tasty Bite Eatables Limited ..Petitioner. versus Union of India and others ..Respondents. ..... Mr. Naresh S. Thacker with Mr. Sushanth Murthy and Mr. Nitya Bagaria i/b Madhur R. Baya for the Petitioner. Ms. Suchitra Kamble for the Respondents. ...... CORAM : DR.D.Y.CHANDRACHUD & A. A. SAYED, JJ. 27 September 2011. P.C. : 1. Leave granted to the Petitioner to amend the Petition to challenge subsequent order of the Commissioner (Appeals) dated 12 September 2011 dismissing the appeal for want of compliance with the order dated 29 July 2011 on the application for waiver of pre- deposit. The amendment shall be carried out during the course of the day. Verification dispensed with. 2. The Commissioner (Appeals), on an application for waiver of pre-deposit has directed the Petitioner to deposit an amount of Rs. 13.58 lacs towards service tax for the period 2005-06 to 2009-10. However, a waiver of pre-deposit has been granted in respect of interest and penalty. The issue is as to whether the Petitioner is covered by an exemption notification dated 10 September 2004. The PNP 2 WP7839-27.9.sxw Additional Commissioner, Service Tax observed in his order that the activity carried out by the Petitioner is processing and packing of agricultural produce which is a post harvesting activity and hence, not in relation to agriculture. The Commissioner (Appeals) has in his impugned decision also come to the conclusion, prima facie, that the nature of the activity is not similar to what is referred to in the circular dated 26 May 2011 issued by the Central Board of Excise and Customs. 3. Whether the Petitioners are covered by the exemption notification is a matter to be decided by the Commissioner (Appeals) in the pending appeal. At this stage, it cannot be said that the Petitioner would be entitled to an absolute waiver as prayed before the Tribunal. However, having considered all the facts and circumstances of the case, we are of the view that the ends of justice would be met if the Petitioner is directed to deposit an amount of Rs.8 lacs in compliance with the requirement of pre-deposit. The amount shall be deposited within a period of four weeks from today. The order passed by the Commissioner (Appeals) shall accordingly be modified in these terms. In view of the present order, the appeal before the Commissioner (Appeals) shall stand revived. In the event that the Petitioner fails to effect deposit in compliance of the present order, necessary consequences under the law shall ensue. The Petition is accordingly disposed of. (Dr. D.Y. Chandrachud, J.) (A. A. Sayed, J.)