A.Gopal Reddy, J.

Petitioner—Contractor a registered dealer in Service Tax Department is engaged in providing service under the category of “site formation, clearance and excavation”. On assessment for the period from 16-06-2005 to 31-03-2008, penalties were imposed under Sections 76 and 77 of Finance Act, 1994 (for short “the Act”) by the Commissioner of Customs, Central Excise & Service Tax (Adjudicating Authority)—third respondent herein by order dated 21-12-2009. Aggrieved by the same petitioner preferred appeal before the Customs, Excise and Service Tax Appellate Tribunal—2nd respondent in ST/731 & 1798/10 with an application for waiver of pre-deposit. The Appellate Tribunal by impugned order dated 06-04-2011 held that the petitioner has not made a strong case for complete waiver of dues and on condition of paying an amount of Rs.10,00,00,000/- within a period of six weeks from the date of order, the pre-deposit will be waived and granted stay for the balance dues as per the impugned order. Questioning the same the present writ petition is filed contending that the petitioner has been paying service tax as per the works contract awarded to them on the amount charged to the service receiver. The service receiver supplied diesel/HSD Oil, explosives and other accessories at the site. The value of the goods supplied by the service receiver were not known to the petitioner and in the bona fide belief that their values was not required to be included in the taxable value, the petitioner did not pay service tax on such value. While so, show cause notice O.R.No.44/2009 Adjn. ST, dated 22-04-2009 was issued requiring the petitioner to show cause as to why an amount of service tax of Rs.13,12,26,103/- for the period from 16-06-2005 to 31-03-2008 should not be paid by the petitioner on the value of HSD oil and explosives supplied by the service receiver enclosing bonus amount paid to the petitioner. Another show cause notice in O.R.No.140/2009 Adjn.ST, dated 20-10-2009 was issued for the period from April, 2008 to June, 2009 on the same grounds proposing to demand service tax of Rs.22,71,78,522/-; interest under Section 75 and penalties under Sections 76 and 77 of the Act. In spite replies given to the show cause notices the Adjudicating Authority—3rd respondent confirmed the demand in toto without quantification of penalty at the rate of 2% per month on the service tax amount and penalty of Rs.5,000/-. The petitioner preferred appeals before the Appellate Tribunal in ST 731/2010 and 1798/2010 along with separate applications for waiver of pre-deposit. In similar matters, the Tribunal granted total waiver of pre-deposit in M/s.Gulf Oil Corporation Ltd. v. Commissioner of Central Excise, Hyderabad (2010 (20) STR 830 (Tri-Bang)) and in case of M/s. PLR Projects Limited in Stay Order No.538/2010, dated 05-07-2010. In both the cases the Tribunal held that supply of materials by the client does not amount to consideration but discriminated the petitioner for waiving the interest which is contrary to the statutory provisions, as the free supplies by the service receiver are not part of the consideration charged under Section 67 of the Finance Act r/w Service Tax (Determination of Value) Rules, 2006.

2. Sri D.Prakash Reddy, learned senior counsel appearing for the petitioner contends that assessing authority brought the value from the service receiver in fixing the liability. If the petitioner purchases the items, which are consumed for providing service, they are liable to be excluded as admitted by the assessing authority in para-18 of its order stating that the department clarified that this exemption would be available only in cases where the sale of such goods is evidenced and the sale value is quantified and shown separately in the invoice, but has not excluded on the ground that Supreme Court dismissed the Civil Appeal filed by the Revenue challenging the decision of the Tribunal in COMMISSIONER v. SHILPA COLOUR LAB 2009 (14) S