1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B.CIVIL WRIT PETITION NO.3201/2008. M/s. Institute of Chartered Financial Analysts of India. VERSUS Union of India and Others. 02.07.2008. HON'BLE MR.JUSTICE DALIP SINGH Mr.M.P.Devnath, for the petitioner. Mr.Shyam Sharma on behalf of Mr.K.K.Sharma, for Union of India. ***** Heard learned counsel for the parties. In this writ petition the prayer of the petitioner is for quashing the impugned order dated 07.02.2008 passed by the respondent No.2 Tribunal refusing to exempt deposit of the amount of Rs.22,96,593/- as a condition precedent for the hearing of the appeal filed by the petitioner and allow the application under Section 35F. The submission of the learned counsel for the petitioner is that the petitioner is an Institution registered as a Society and doing work not for the profit but in the field of eduction. The Society has branches at Hyderabad and Bangalore including the present branch at Jaipur. The petitioner Society was assessed for service tax under the provisions of the Finance Act, 1994 and under the order dated 30.03.2007 was held liable for deposit of an amount of Rs.22,96,593/-. Being aggrieved by the aforesaid order 2 dated 30.03.2007 the petitioner submitted an appeal before the Commissioner (Appeals) and also moved an application for stay and exemption and waiver of the condition of pre- deposit of the service tax. The said application came to be decided by the learned Commissioner (Appeals) vide order dated 09.10.2007 (Annexure-11) and the prayer for dispensing with/waiving the condition of pre- deposit was rejected. Being aggrieved by the order of the Commissioner (Appeals) rejecting the application for the waiver of the condition of pre-deposit and stay, the petitioner preferred an appeal before the respondent No.2 the Customs, Excise and Service Tax Appellate Tribunal, New Delhi. Before the Tribunal, respondent No.2, one of the grounds raised by the petitioner in the application was that the learned Tribunal itself in the case of the petitioner Society's Branches operating from Hyderabad and Bangalore after having considered the facts and circumstances relevant for the purposes of passing the order for waiver of pre-deposit condition and upon being satisfied had passed order in favour of the petitioner Society in stay orders No.172 to 175/2007 dated 28.03.2007 and ordered for complete waiver of the pre- deposit of the service tax. The relevant averments in appeal are as follows:- “A.3 The appellants submits that, as brought out supra, they filed a Stay Application along with the Appeal for waiver of pre-deposit of duty and 3 penalty before the Commissioner (Appeals). It was submitted before the Commissioner (Appeals) that the issue as to whether the Appellant is rendering 'commercial training or coaching service' came before the Hon'ble CESTAT. The Hon'ble CESTAT vide Stay Order No's 172 to 175/2007 dated 28.03.2007 held that the Appellant has a prima facie case for complete waiver of pre-deposit of service tax and penalty. Thus, it was held that the Appellant is not required to pre-deposit any amount of service tax or penalty.” Learned counsel submitted that despite the fact that the contention to this effect was raised before the learned CESTAT, the learned Tribunal while passing the impugned order (Annexure-1) has given a complete go bye to the aforesaid contentions and has dismissed the appeal without reference to the submissions made before it with regard to the parity of the case of the petitioner with its branches at Bangalore and Hyderabad in respect of which the CESTAT itself has granted stay orders No.172 to 175/2007 dated 28.03.2007, as mentioned in para A.3 of the memo of appeal. In support of the above contention, learned counsel for the petitioner drew the attention of the court to the pleadings in the writ petition duly supported by the affidavit at page No.19 para No.31-A.4 to A.6 wherein it has been averred by the petitioner as follows:- “A.4 A perusal of the above would indicate that the CESTAT has not even considered the submissions of the petitioners that in their own case the Hon'ble Tribunal had granted unconditional stay reported in 2007 (8) STR 41. The petitioners, 4 therefore, submit that in their own case the Tribunal had granted unconditional stay, hence, the Tribunal being an All India body is bound by the stay order passed by their Bench at Bangalore. Hence, the order passed by the Tribunal is ex- facie perverse, erroneous and incorrect in law. A.5 The petitioners submit that the Tribunal has erred without even considering the issue and not taking into consideration the orders passed in the petitioners' own case to hold that the petitioners do not have a prima facie case. This, according to the petitioners is ex-facie perverse, erroneous and contrary to the orders placed and argued before the Tribunal. Hence, on this ground also insisting of the entire amount is ex-facie perverse, erroneous and incorrect in law. A.6 The petitioners submit that the very fact that they filed a modification application before the Commissioner (Appeals) was to bring home the point that in their own case the Bangalore Bench of the Tribunal on the very same issue had granted complete waiver, hence, this was not even considered by the Commissioner (Appeals) while passing the order which was impugned before the Tribunal. In fact, the petitioners in the modification application categorically submitted that in their own case, the Bangalore Bench of the Tribunal had granted unconditional stay. Hence, the petitioners, therefore, moved a modification application. The Commissioner (Appeals) without even referring to the modification application filed by them passed an order dismissing the appeal for non-compliance. The petitioners submit that the Tribunal again committed the same error by not taking into consideration the submissions made by the petitioners. The petitioners specifically placed case laws in their own case reported in 2007 (8) STR 41. Despite this, the 5 Tribunal did not even refer to the said interim order in their own favour but held that the petitioners do not have a prima facie case, which is ex-facie perverse, erroneous and incorrect in law. This, according to the petitioners, is complete non- application of mind and hence the order dated 7.2.2008 passed by the Tribunal be set aside and the Tribunal should rehear the matter on merits.” On the basis of the above, learned counsel for the petitioner has submitted that the order passed by the learned Tribunal without considering the submissions made by the petitioner with reference to the earlier orders passed by the learned Tribunal in the case of the averment of the petitioner-Society at Bangalore and Hyderabad holding that in the case of the petitioner-Society rendering services without profit, the Society was entitled to the waiver of the pre-deposit of the tax prior to the hearing of the appeal. The learned Tribunal has, therefore, committed a serious error of jurisdiction in not considering and deciding the submissions made before it. I have heard the learned counsel for the parties. From the facts mentioned above and the pleadings duly supported by the affidavit which are not controverted, I am satisfied that the learned Tribunal has not considered the matter in the light of the submissions made before it as to whether the petitioner is entitled for allowing the application for the grant of waiver of the condition of pre-deposit, as has 6 been done in the case of the petitioner's branches at Hyderabad and Bangalore by the order of the Tribunal dated 28.03.2007 itself in the Stay Orders 172 to 175/2007, as has been referred hereinabove. If there were any reasons which prevailed with the learned Tribunal for not passing a similar order in the present case, no such reasons appear from the order of the learned Tribunal. In the facts and circumstances, therefore, I deem it just and proper to remand the case to the learned Tribunal for decision of the appeal filed by the petitioner against the order of the Commissioner (Appeals) deciding the application under Section 35F in the light of the submissions which were made before the learned Tribunal both in the memo of appeal and the contentions raised before the learned Tribunal to that effect. Consequently, this writ petition is disposed of, as above. The order of the learned Tribunal dated 07.02.2008 is set aside and the matter is remanded for hearing and deciding the appeal afresh in the light of the above. The parties are directed to appear before the learned Tribunal on 21.07.2008. (DALIP SINGH),J. Solanki DS, Jr.P.A.