2013 (3) TMI 471 - HC - Service Tax

Court upholds Tribunal's order on Stay Application under Section 35F of Central Excise Act

The Court dismissed the appeals challenging the Tribunal's order on a Stay Application under Section 35F of the Central Excise Act. The appellant was ... Writ petition against the order of CESTAT dispensed with the pre-deposit of the amount over and above ₹ 5,00,00,000/- i.e., to the extent of ₹ 21,00,00,000/- deposit was dispensed with and the Tribunal directed the appellant to deposit only a sum of ₹ 5,00,00,000/- held that:- the judgment of the Supreme Court in Benara Valves Ltd. v. CCE [2006 (11) TMI 6 - SUPREME COURT OF INDIA] is attracted to the facts of the case, as the Tribunal considering the prima facie nature of the appeal has also examined the financial position of the assessee. - the conduct of the assessee in seeking an order under Section 35F of the Act taking the benefit of an order and further seeking extension of time and later on turning around and filing writ petitions and appeals under Section 35G of the Act is neither bona fide conduct nor one to be encouraged. Pre-deposit is a rule and dispensation is an exception in terms of Section 35G of the Act and in the present case, while on merits substantial relief had been granted by the Tribunal, it is not as though the assessee was not granted any relief at all. - Writ petition dismissed - Against assessee. Issues:Appeal under Section 35G of the Central Excise Act, 1944 - Tribunal's order on Stay Application under Section 35F for waiver of deposit - Compliance with deposit amount - Granting of interim stay by the Court - Application for vacating the stay order - Financial position of the assessee - Prima facie case of appeal - Conduct of the assessee in seeking extension of time and filing writ petitions and appeals - Balance amount deposit pending - Tribunal's discretion in granting waiver - Supreme Court's guidelines on granting stay in revenue matters.Analysis:The appeals were filed under Section 35G of the Central Excise Act, challenging the Tribunal's order on Stay Application under Section 35F for waiver of deposit. The Tribunal had directed the appellant to deposit Rs. 5,00,00,000 out of the total amount of Rs. 26,00,00,000, granting a waiver of Rs. 21,00,00,000. Despite extensions granted, the appellant failed to deposit the balance amount and instead filed writ petitions and appeals. The Court noted the Tribunal's consideration of the financial position of the assessee and the prima facie case, in line with the Supreme Court's guidance on balancing undue hardship and safeguarding revenue interests.The appellant's counsel argued that the Tribunal did not adequately consider the financial position and the prima facie case, citing the Supreme Court's decision in Benara Valves Ltd. v. CCE. The counsel highlighted the potential prejudice and injury to the appellant due to financial constraints. On the other hand, the respondent's counsel pointed out the Tribunal's detailed consideration of the case and financial position, leading to the partial waiver based on the proviso of Section 35F.The Court emphasized that while granting stay should be an exception in revenue matters, pre-deposit is the rule under the Act, with dispensation being an exception. The Tribunal had already granted substantial relief, and the appellant had accepted the order but failed to deposit the balance amount despite seeking an extension. The Court found the conduct of the appellant in filing multiple petitions and appeals not genuine and not to be encouraged.Considering the facts and the conduct of the appellant, the Court decided not to interfere with the matter and dismissed the appeals while vacating the interim stay. The appellant was granted four more weeks to deposit the balance amount before the Tribunal. The Court also dismissed the application for condonation of delay, as the main appeals had been dismissed.In conclusion, the Court upheld the Tribunal's decision, emphasizing the importance of complying with deposit requirements and discouraging the filing of multiple petitions and appeals after accepting initial orders. The judgment provides clarity on the balance between undue hardship and revenue protection in matters of pre-deposit and stay applications under the Central Excise Act.