2009 (1) TMI 47

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....company incorporated under the Companies Act, 1956.  The petitioners and similar other companies are incorporated pursuant to a Memorandum of Understanding entered into with the Ministry of Energy and the Ministry of Defence. The shares of the petitioners are held by war widows and disabled soldiers. 4. In the present petition filed under 226 of the Constitution of India, the petitioners are challenging the order dated 8/10/2008 passed by the Customs, Excise & Service Tax Appellate Tribunal, West Zonal Bench at Mumbai ('tribunal' for short) in Appeal No.ST/167/08-Mum, wherein the tribunal has directed the petitioners to deposit a sum of Rs.30 lacks as a condition for hearing the appeal filed by the petitioners against the or....

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....tayed recovery pending the appeal.  Learned counsel submitted that the petitioners have a strong prima facie case. He drew our attention to the judgment of the tribunal in Sainik Mining & Allied Services Ltd. V/s. Commr. of C. Ex., Cus. & S.T., BBSR 2008 (9) S.T.R. 531 (Tri.- Kolkata), wherein the tribunal has considered the question involved in the instant case and come to a conclusion that the type of cargo handling activities undertaken by the petitioners are not covered by the definition of "cargo handling service" under the Finance Act, 1994.  Learned counsel submitted that, therefore, the tribunal erred in rejecting the application of the petitioners. 7. We have heard Mr.R.V.Desai, learned senior Advocate for the responde....

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....e hardship is caused when the hardship is not warranted by the circumstances. Learned counsel submitted that the petitioners have failed to establish undue hardship and, therefore, the application has been rightly rejected by the tribunal. 8. It is not possible for us to agree with Mr.  Desai. It is pertinent to note that in similar fact situation in SSV Coat Carriers Pvt. Ltd., the tribunal has granted the prayer for waiver of predeposit. Similarly, in Kartikay Bulk Movers Pvt. Ltd. V/s. Commissioner of Central Excise, Nagpur delivered on 7-10-2008, where also the facts were somewhat similar, waiver of predeposit has been granted. Moreover, the tribunal in Sainik Mining & Allied Services Ltd.'s case (supra) has come to the conc....