2012 (10) TMI 344 - HC - Central Excise

High Court admits appeal on pre-deposit of excise duty, balances equities, upholds prior Supreme Court decisions

M/s Vishvakarma Paper and Boards Limited Versus The Commissioner of Central Excise, Meerut-II, Meerut

The High Court admitted an appeal challenging the Tribunal's stay order directing pre-deposit of excise duty, despite a related matter pending before the ... Waiver application u/ 35F - Pre deposit - area based exemption - commencement of production after 7-1-2003 - Held that:- As the appellant would not be entitled to any interim relief as penalty amounts have already been waived by the Tribunal. Balancing the equities between the parties and keeping in view that the appellant has not passed on the burden to the consumer and has not realised excise duty from the consumers, as also that the appellant has stated on affidavit that it is in great financial hardship and if the appellant is required to deposit to the amount it would cause undue hardship even to the extent of closing down the industry and also keeping in view that the matter is under active consideration of the Apex Court in the case of Union of India vs. West Coast Paper Mills Ltd.[2004 (2) TMI 344 - SUPREME COURT OF INDIA], the appeal of the appellant before the Tribunal may be heard, provided the appellant deposits 50 percent of the imposed excise duty with the AO within eight weeks from Order and furnishes security, which may be other than cash or bank guarantee, for the balance amount before the Assessing Officer within the same period. Issues:1. Substantial questions of law regarding the validity of the stay order passed by the Tribunal.2. Direction for pre-deposit of entire excise duty demanded despite special leave granted by the Supreme Court.3. Direction for deposit of outstanding duty in contradiction to the principle laid down by the Supreme Court.4. Contradictory terms in the impugned stay order passed by the Tribunal.Issue 1:The High Court admitted an appeal based on substantial questions of law, including the validity of the stay order passed by the Tribunal. The appellant questioned the justification of the stay order in light of circulars by the Central Board of Excise and Customs, which suggested that adjudication should not proceed if the issue is pending before the Supreme Court. The Tribunal's stay order was challenged due to its contradiction in terms, as it directed predeposit by the appellant while also stating that coercive measures for recovery would not be taken during the appeal before the Supreme Court.Issue 2:The Tribunal directed the pre-deposit of the entire excise duty demanded, despite the grant of special leave by the Supreme Court in a related matter involving identical legal questions. The appellant argued that the realization of excise duty would be unjustified as the matter was under active consideration by the Supreme Court. The appellant cited the judgment in Union of India v. West Coast Papermills Limited to support the claim that exemption is granted to promote the industry, and the imposition of the entire duty would cause undue hardship, potentially leading to the closure of the industry.Issue 3:The Tribunal's direction for the deposit of the entire outstanding duty was challenged on the grounds that it contradicted the principle established by the Supreme Court in Union of India v. West Coast Papermills Limited. The appellant contended that the imposition of the entire duty would result in severe financial hardship, potentially forcing the sale of plant and machinery, and closure of the industry. The High Court balanced the equities between the parties, considering that the appellant had not passed on the burden to consumers and had not realized excise duty from them.Issue 4:The impugned stay order passed by the Tribunal was found to contain contradictory terms, as it directed predeposit by the appellant while also indicating that coercive measures for recovery would not be pursued by the Jurisdictional Central Excise Authorities during the pendency of the appeal before the Supreme Court. The High Court directed the appellant to deposit 50 percent of the imposed excise duty with the Assessing Officer within eight weeks and furnish security for the balance amount to ensure the appeal could be heard by the Tribunal.This detailed analysis of the judgment from the Allahabad High Court addresses the substantial legal issues raised by the appellant regarding the validity of the Tribunal's stay order, the direction for pre-deposit of excise duty, the contradiction with established legal principles, and the contradictory terms within the impugned stay order.