TaxTMI 
TaxTMI 
2011 (12) TMI 190
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....inated. The whole purpose of the protector-Institution is to prevent discrimination and arbitrariness. Hence, such Institutions shall not give rise to even a remotest feeling or situation of being in-consistent in their orders lest they should be accused of being partial and unfair. 2. The above guiding principles having served as background to the instant case, we may briefly refer to the fact situation. In the nature of the order we propose to pass in this case, it is not necessary for us to go in detail to the merits of the case. The first petitioner was a partnership firm till December, 2009, whose unit at Baddi in Himachal Pradesh was engaged as a job worker for Colgate Palmolive India Ltd. Petitioner was also a registered service provider paying service tax under the category of 'Business Auxiliary Services'. The Central Excise has taken the view that the activities thus carried out by the petitioner amounted to manufacture, thus attracting excise duty. The petitioners contested the same on merits and also claimed exemption from payment of excise duty on the ground that the unit is situated within the notified area and thus entitled to exemption from payment of cent....
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....y fiat of the person in the office passing the orders. The decision has to be informed by reasons, objectivity and transparency. Whim and caprice are alien to judicial process. Consistency in passing orders is a vitally relevant factor, while exercising discretion in passing judicial orders, lest it should be mis-understood as an exercise of arbitrary power and attribution of motives. Exercise of arbitrary powers is the pre-Constitution concept and approach by the despotic monarchs. Constitutional Institutions vested with judicial powers are to exercise their powers on proper application of mind, weeding out all extraneous considerations and they should act fairly and impartially. Consistency is one of the hallmarks of the judicial discipline, particularly in passing interlocutory orders. 5. The Supreme Court of India in Birbal versus Ghaziabad Development Authority, reported in (2006) 10 SCC 305, in the fact situation of deposit at the appellate stage of land acquisition compensation has held that there must be consistency in passing judicial orders. The view was followed with more emphasis in the recent judgment in State of U.P. and others versus Hirendra Pal Singh and ....
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....e have referred to above, we have no doubt in our mind that the Tribunal should have invoked the power under Rule 41, once a petition producing also the order passed in Vasantham Enterprises (Annexure P- 19), was brought to the notice of the Tribunal, in the interest of justice and for securing the ends of justice, otherwise the inconsistent orders would shake the faith of a citizen in the impartiality of the Tribunal or such other judicial forums. 8. Rule 41 of the Customs, Excise and Gold (Control) Appellate Tribunal (Procedure) Rules, 1982, followed by CESTAT, also is an inherent power vested with the Tribunal to be exercised for securing the ends of justice. The provision had came up for a judicial scrutiny before the Apex Court in J.K. Synthetics Ltd. Versus CCE, reported in 1996 (86) E.L.T. 472 (SC), wherein it has been held as follows: "5. Rule 41 gives CEGAT vide powers to make such orders or give such directions as might be necessary or expedient to give effect or in relation to its order or to prevent abuse of its processor, most importantly, to secure the ends of justice. If, in a given case, it is established that the respondent was unable ....
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.... undue hardship aspect and imposition of conditions to safeguard the interest of Revenue have to be kept in view. 12. As noted above there are two important expressions in Section 35(F). One is undue hardship. This is a matter within the special knowledge of the applicant for waiver and has to be established by him. A mere assertion about undue hardship would not be sufficient. It was noted by this Court in S. Vasudeva vs. State of Karnataka and Ors. (AIR 1994 SC 923) that under Indian conditions expression "Undue hardship" is normally related to economic hardship. "Undue" which means something which is not merited by the conduct of the claimant, or is very much disproportionate to it. Undue hardship is caused when the hardship is not warranted by the circumstances. 13. For a hardship to be 'undue' it must be shown that the particular burden to have to observe or perform the requirement is out of proportion to the nature of the requirement itself, and the benefit which the applicant would derive from compliance with it. 14. The word "undue" adds something more than just hardship. It means an excessive hardship or a hardship greater than the circumstanc....