- (1.) AFFIIDAVIT-OF-SERVICE filed in Court today be kept on records.
(2.) IN the writ petition the petitioner has challenged the order dated 11th june, 2008 passed on the Stay Petition No. SP 314/07 arising out of Service tax Appeal No. 30/07 on the ground that the order of the learned Customs, excise and Service Tax Appellate Tribunal, Kolkata (hereinafter referred to as "the Tribunal") is perverse as it did not consider the judgment and order dated 12th June, 2006 passed by the Mumbai Bench of the Tribunal in the case of the appellant itself wherein full waiver of pre-deposit of service tax and penalty were granted. Moreover, the Tribunal did not consider the case of Naresh Kumar and Co. vs. Commissioner of Service Tax, Kolkata in M. A. 426 of 2006, and S. P. No. 616 of 2006 where in a similar matter it had directed stay of pre-deposit of tax and penalty interest imposed on the appellant therein. Submission has been made that the averments made in the application for stay particularly in paragraph-5 were not considered and order impugned has been passed mechanically without going into the fact whether a prima facie and arguable case have been made out. Instead of considering the order dated 18th December, 2007 in W. P. No. 1359 of 2007, karamchand Thapar vs. Union of India wherein it has been held that the rate of taxation is similar so far as business auxiliary service and clearing and forwarding agent are concerned, the Tribunal had referred to an order dated 29th May, 2008 passed in Naresh Kumar and Co. vs. Commissionerate of Service Tax in Appeal No. STAP 31 of 2007 which the appellant had no chance to deal with.
(3.) LEARNED Advocate appearing on behalf of the respondents submits that the order is just and proper as it is evident that whether prima facie case exists or not was considered and since huge revenue is involved directions were issued for pre-deposit.;