2003 (9) TMI 97 - HC - Central Excise

Petition Dismissed: Tribunal's Decision on Duty Deposit Stands Due to Lack of Prima Facie Case for Modification.

BARON INTERNATIONAL LTD. Versus UNION OF INDIA

The Court dismissed the petition challenging the CEGAT's refusal to modify its prior order requiring a deposit towards duty and penalty. It concluded that ... Stay order - Seeking Modification of its earlier order - Financial hardship - waiver of duty - HELD THAT:- No material facts or particulars as to who supplied information is to be found. No independent enquiry was made by the said Chartered Accountant before issuing such certificate. It is really unfortunate, that such highly respected professionals like Chartered Accountants should start issuing such casual certificates just to please or oblige their clients. We have examined each and every aspect of the finding recorded by the Tribunal to examine the perversity of the findings sought to be demonstrated before us. Having examined the same, we are of the opinion that no perversity exists in the order. We agree with the findings of the Tribunal in toto. If one turns to the P & L Account for the period ended 31st March, 2002, the sale of the Petitioner company are in the sum of Rs. 28,88,52,381/- for nine months. The net current assets are in the sum of Rs. 69,49,41,680/-. The net worth of the company is also positive. The sales of the Petitioner company for the year ended on 30th June, 2001 were in the sum of Rs. 513,47,28,469/- Schedule II forming part of the balance sheet as on 31st March, 2002 shows loans and advances to the Directors, Sister Companies or Group Companies, intercorporate deposits, intercorporate advances and other deposits are in the sum of Rs. 108,37,32,077/- as against 115,38,12,021/- as on 30th March, 2001 meaning thereby Rs. 17,00,79,944/- are realised in the current year in one or the other form. This is sufficient to show good financial health of the petitioner Company. The above discussion will show that the order of the Tribunal cannot be said to be a perverse, much less erroneous. The view taken by the tribunal is not only possible but the correct view based on facts; which can very well be supported on the basis of the material available on record. No case is made out to interfere with the impugned order. We endorse and confirm the order of the CEGAT and dismiss this petition in limini for the reasons recorded herein as well as for the reasons recorded by the Tribunal in the impugned order. In the result, petition is dismissed with no order as to costs. ISSUES PRESENTED AND CONSIDERED 1. Whether the Tribunal has power to review or reconsider its own order directing pre-deposit, or whether challenges must be confined to an application for modification predicated on a change in circumstances. 2. Whether an application for modification based on alleged financial hardship constitutes a permissible change in circumstances warranting modification of an earlier order directing pre-deposit. 3. Whether the Tribunal is obliged to undertake a preliminary prima facie enquiry to determine whether an application for modification merits full consideration on the merits, and whether frivolous or review-in-disguise applications may be rejected at the threshold. 4. Whether the Tribunal's findings on the appellants' financial position were perverse or unsupportable on the record, such that interference with the Tribunal's refusal to waive the pre-deposit was warranted. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Power of the Tribunal to review its own order vs. modification only on changed circumstances Legal framework: Administrative and appellate tribunals do not possess inherent review jurisdiction unless expressly conferred by statute; relief from an earlier order must be sought by way of modification based on changed circumstances rather than by a de facto review. Precedent treatment: The Court applied settled law that the Tribunal has no general power to review its own orders and must not treat applications for modification as a vehicle for review; prior authority to that effect was followed. Interpretation and reasoning: The Court examined the nature of the impugned application and concluded that the relief sought was, in substance, review of the earlier direction for pre-deposit. The Court emphasized that where no statutory review jurisdiction exists, permitting review-in-disguise undermines the statutory scheme and fosters repeated re-litigation of concluded orders. Ratio vs. Obiter: Ratio - Tribunal lacks power to review its own orders; applications for modification must show bona fide change in circumstances and cannot be used as review-in-disguise. Conclusion: Applications framed as modification but seeking reconsideration of matters already decided are not maintainable; the Tribunal should refuse to entertain such applications at the threshold. Issue 2 - Financial hardship as a ground for modification; whether alleged hardship amounted to change in circumstances Legal framework: To succeed in a modification application on the ground of financial hardship, the applicant must show that the hardship is a change in circumstance that arose after the earlier order or was not placed before the Tribunal when the earlier order was made; mere reiteration of the same hardship already presented is insufficient. Precedent treatment: The Court treated existing authorities as supporting the proposition that inability to pay must amount to a new or newly-established circumstance to justify modification; that principle was followed. Interpretation and reasoning: The Tribunal's order of April 22 directing pre-deposit and the subsequent modification application filed within three weeks were examined. The Court found no material on record showing any change in circumstances post the original order. Financial difficulty claimed in the modification application was either pre-existing or was supported by a certificate based on hearsay, lacking independent verification. Consequently, the claimed hardship could not be treated as a fresh ground for modification. Ratio vs. Obiter: Ratio - Financial hardship must be newly arising or supported by fresh, reliable material to constitute a ground for modification; pre-existing or unsubstantiated claims do not suffice. Conclusion: The modification application predicated on financial hardship was untenable; it did not disclose a change in circumstances and therefore ought to have been rejected at the threshold. Issue 3 - Duty to conduct preliminary prima facie enquiry before entertaining modification applications Legal framework: Tribunals may screen interlocutory applications to determine whether they disclose a prima facie case warranting full adjudication; such screening promotes judicial economy and prevents abuse of process. Precedent treatment: The Court endorsed the practice of preliminary examination and required tribunals to undertake a prima facie inquiry before admitting modification applications for full hearing; this approach was followed and directed to be applied in future. Interpretation and reasoning: Based on institutional experience, the Court observed that modification applications are frequently used to re-open settled orders and consume disproportionate judicial time. The Court held that the Tribunal should, as a matter of practice, first ascertain whether the application shows any change in circumstance or other prima facie reason that was not available earlier; only if satisfied should the Tribunal proceed to consider merits. This threshold exercise avoids needless hearings and preserves Tribunal resources. Ratio vs. Obiter: Ratio - Tribunal should conduct a prima facie enquiry into the sufficiency of material supporting a modification application and may reject frivolous or review-in-disguise applications at the threshold. Conclusion: The Tribunal ought to adopt and apply a threshold screening mechanism; had it done so in the present matter, the modification application would have been rejected without an elaborate merits assessment. Issue 4 - Validity of the Tribunal's factual findings regarding financial condition and whether they were perverse Legal framework: Appellate interference with a tribunal's factual findings is permissible only where findings are perverse, not based on material on record, or are otherwise unsustainable; appellate courts must respect conclusions reasonably supported by the record. Precedent treatment: The Court applied the conventional standard that factual conclusions are to be upset only when they are shown to be perverse or unsupported by material on record; that standard was followed. Interpretation and reasoning: The Court reviewed the balance-sheet particulars, profit and loss figures, net current assets, net worth and inter-corporate advances. It found robust sales and positive net worth, along with realization of large amounts in loans and advances, indicative of good financial health. The Court also rejected a supporting accountant's certificate as being based on hearsay and lacking independent verification. Evaluating the record as a whole, the Court concluded the Tribunal's view that no prima facie case for total waiver of pre-deposit was made out was a permissible and correct conclusion, not vitiated by perversity. Ratio vs. Obiter: Ratio - Where the record contains material supporting the Tribunal's factual findings, appellate interference is unwarranted; hearsay or unverified certifications cannot furnish a basis to overturn such findings. Conclusion: The Tribunal's findings on financial health were not perverse or unsupportable; no interference with the refusal to waive the pre-deposit was justified. Overall Conclusion and Directions The Court affirmed the Tribunal's refusal to modify the order directing pre-deposit, holding that the modification application was effectively a prohibited review, failed to disclose any change in circumstances, and was unsupported by admissible, reliable evidence. The Court directed that Tribunals should henceforth conduct a prima facie threshold enquiry into modification applications and are entitled to reject frivolous or review-in-disguise applications at the outset to conserve judicial resources.