2012 (12) TMI 390 - AT - Central Excise

Tribunal Upholds Pre-Deposit Rule in Stay Order Modification Application

M/s. DEVIS MANUFACTURING WORKS & OTHERS Versus COMMISSIONER OF CENTRAL EXCISE, KOLKATA-V

The Tribunal dismissed the Application for modification of the Stay Order, emphasizing the importance of adhering to statutory provisions regarding ... Application for modification of Stay Order - stay/dispensation of pre-deposit - In the present case on the application filed by the respondent, a direction was given to deposit only 25% of the amount of the penalty which had been imposed against the said respondent - Applicants claimed that they did not receive the notice - matter was got verified and ascertained from the registry that the notice was duly sent to the address stated on the fact of the Appeal Memoranda - Applicant Firm has not paid a single paisa till date - Tribunal after having exercised jurisdiction for the purposes of passing an order for waiver of pre-deposit u/s 35F of the Act cannot modify that order subsequently like an appellate authority, nor can keep tinkering with the order as and when applications for modification of the order are filed - Appeals are dismissed for non-compliance with the provisions of Section 35F of the Central Excise Act, 1944. Issues:Application for modification of Stay Order based on alleged non-receipt of hearing notice and lack of opportunity to be heard.Analysis:The Applicants filed an Application seeking modification of a Stay Order dated 27.06.2012, which directed them to make a predeposit of 25% of the Central Excise Duty involved in the case. They contended that they were not served with a notice for the hearing of the Stay Petitions and, therefore, were unaware of the date of the hearing. They requested a fresh hearing to decide the Stay Petitions. On the other hand, the Revenue pointed out that the Stay Petitions had been pending since June 2010, and the dues in question amounted to Rs. 5,29,61,156.00. The initial hearing was scheduled for 27.06.2012, but the Applicants claimed non-receipt of the notice. Upon verification, it was confirmed that the notice was sent to the address provided in the Appeal Memoranda. The duty involved was approximately Rs. 2.64 crore, and the Stay Order mandated a predeposit of 25% within eight weeks from the Order date. The Applicant Firm failed to comply with this directive, leading to the dismissal of the present Miscellaneous Application for modification of the Stay Order.The Tribunal highlighted the significance of Section 35F of the Central Excise Act, 1944, emphasizing the requirement for pre-deposit to maintain an appeal. Citing the decision in the case of McDowell & Co. Ltd., the Tribunal underscored that the mere existence of a prima facie case does not absolve an assessee from fulfilling pre-deposit obligations. Referring to legal precedents, the Tribunal clarified that once an order for waiver of pre-deposit is passed under Section 35F, it cannot be modified subsequently like an appellate authority. The Tribunal's jurisdiction does not extend to reviewing its orders while exercising appellate powers. Therefore, the dismissal of the present Application for modification was justified, and the Appeals were dismissed due to non-compliance with the provisions of Section 35F of the Act.In conclusion, the Tribunal dismissed the Application for modification of the Stay Order, emphasizing the importance of adhering to statutory provisions regarding pre-deposit requirements for maintaining appeals under the Central Excise Act, 1944. The decision was based on the principle that the Tribunal cannot alter orders issued under Section 35F like an appellate authority and must uphold the legal framework governing pre-deposit conditions for appeals.