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2015 (1) TMI 271 - HC - Central ExciseWaiver of pre deposit - Classification of the product ‘Di Calcium Phosphate - Animal Feed Grade - chapter 23 or chapter 28 - Precedent decision distinguished - Held that:- Tribunal has not delved into the aspect as to whether the assessee in the case of M/s. Sudeep Pharma Ltd. [2015 (1) TMI 296 - CESTAT AHMEDABAD] was in any manner not similarly situated to the petitioner when it was the specific case of the petitioner that identical controversy was involved and that the petitioner was similarly situated to the said assessee. On a perusal of the show-cause notice issued in the case of the petitioner as well as in the case of M/s. Sudeep Pharma Ltd., a copy whereof has been placed on record, it is apparent that the controversy involved in both the cases was identical. In the order passed in the case of M/s. Sudeep Pharma Ltd., the Tribunal has not discussed on the aspect of financial hardship. The learned counsel for the respondents is not in a position to point out any notable difference in the case of the petitioner and in the case of M/s. Sudeep Pharma Ltd. Under the circumstances, the above referred decision of the Supreme Court in the case of Vishnu Traders v. State of Haryana (1993 (11) TMI 230 - SUPREME COURT) would be squarely applicable to the facts of the present case. The Tribunal, therefore, was not justified in discriminating between the petitioner and the other assessee by directing the petitioner to pre-deposit an amount which is much more than in other cases. Under the circumstances, adopting the same approach as in the case of Sudeep Pharma Ltd., the Tribunal ought to have directed predeposit of an amount of ₹ 8.5 lakhs. The impugned orders being contrary to the law laid down by the Supreme Court in the case of Vishnu Traders v. State of Haryana [1993 (11) TMI 230 - SUPREME COURT], therefore, cannot be sustained - Decided partly in favour of assessee.
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