TMI Blog2010 (7) TMI 412X X X X Extracts X X X X X X X X Extracts X X X X ..... ount on the basis of the prayer made by his own counsel, should not be permitted to dispute the correctness of the order of modification - appellant not permitted to challenge the order - G.A. No. 1501 of 2010, A.P.O.T. No. 274 of 2010 and W.P. No. 1235 of 2009 - - - Dated:- 9-7-2010 - J.N. Patel, C.J. and Bhaskar Bhattacharya, J. REPRESENTED BY : S/Shri Debi Pal, Abhratosh Majumder, Ananda Sen and Avra Majumder, for the Appellant. S/Shri Farook M. Razack, ASG, Soumitra Mukherjee , N.C. Roychowdhury, R. Bharadwaj, K.K. Maity and Ms. Priyanka Bhutoria, for the Respondent. [Judgment per : Bhaskar Bhattacharya, J.]. Instead of disposal of the application, we have heard out the appeal itself by treating as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and materials which had been supplied freely by the customers without any consideration to the writ-petitioner being the service provider and from imposing any service tax on the said amount and also from realizing the demand made in the show cause notice dated 17th September, 2009 issued by the respondent No. 1 wherein demand was made from the writ-petitioner to pay service tax on 100% of the gross amount received from the customers for the service provided by the petitioner by levying service tax on the amount availed as abatement. 5. On23rd February, 2010when the said writ-application was moved before a learned Single Judge of this Court, His Lordship directed the parties to complete affidavit by19th April, 2010. Thereafter, His Lords ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Single Judge extended the time for deposit of the amount mentioned in the order dated 23rd April, 2010 till 7th May, 2010 and further restrained the respondents from taking any coercive action till 11th May, 2010. 8. Being dissatisfied, the writ-petitioner has come up with the present appeal. 9. Dr. Pal, the learned senior advocate appearing on behalf of the appellant, laboriously contended before us that the direction for deposit of the amount of Rs. 3,68,18,583/- was based on total misreading of the statement made in paragraph 32 of the writ-application. Dr. Pal contends that his client challenged the legality of the notification and in the said paragraph 32 of the application disputed the demand of Rs. 39 crore and odd by co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Constitution of India, there was no question of giving unconditional benefit of exemption by ignoring the terms of notification issued in terms of Section 93(1) of the Finance Act, 1994. Mr. Razack, therefore, prays for dismissing the appeal. 13. After hearing the learned counsel for the parties and after going through the materials on record, we find that the writ-petitioner in the application under Article 226 of the Constitution of India has challenged the notification of exemption issued in exercise of power under Section 93(1) of the Act as violative of Article 14 of the Constitution of India. In our opinion, in this type of a litigation where the provision of exemption has been challenged as violative of Article 14 of the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd substance in the contention of Mr. Razack that the writ-petitioner, having taken benefit of extension of time for depositing the amount on the basis of the prayer made by his own counsel, should not be permitted to dispute the correctness of the order of modification. In this case, on the prayer of the appellant, the time was extended and the respondents were restrained from taking coercive measure against the appellant. After getting such benefit, the appellant should not be permitted to challenge the said order. 18. On the aforesaid ground also, we should not entertain this appeal. 19. As regards the decision of the learned Single Judge of the Madras High Court in the case of Larsen Toubro Ltd. v. Union of India reported in 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties for the simple reason that for not preferring any appeal against an erroneous interim order in respect of demand of previous year, the Revenue is not bound by that decision in respect of demand for a subsequent year. 21. On consideration of the entire materials on record, we, thus, find that this appeal is devoid of any substance and is consequently dismissed. 22. In the facts and circumstances, there will be, however, no order as to costs. Later : 23. [Order per : J.N. Patel, CJ.]. - Urgent Photostat certified copy of this judgment and order be made available to the parties, if applied for, within Tuesday (13-7-2010) subject to compliance with all requisite formalities. 24. [Order per : Bhaskar Bhattacharya, J.]. - I ag ..... X X X X Extracts X X X X X X X X Extracts X X X X
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