1990 (3) TMI 183 - AT - Central Excise

Special Bench confirms jurisdiction for Stay Petition, allows new petition with fresh facts and legal provisions.

The Special Bench confirmed its jurisdiction to decide the Stay Petition, allowing for a new Stay Petition based on fresh facts and legal provisions. The ... Stay - Order on stay application Issues:- Review of order passed by the West Regional Bench- Jurisdiction of the Special Bench in deciding the Stay Petition- Consideration of a new Stay Petition based on fresh facts and legal provisions- Interpretation of Sec. 11A for recovery of erroneously refunded duty- Prima facie case for waiver of pre-deposit amountJurisdiction of the Special Bench:The applicants filed an appeal and a Stay Petition with the West Regional Bench at Bombay, wherein the Stay Petition was decided, directing the deposit of a specified amount. Subsequently, the appeal's record was transferred to the Special Bench at New Delhi due to jurisdiction. The applicants then submitted a Misc. Application seeking revision/review of the Stay Petition order, which was heard by the Special Bench. The Special Bench confirmed its jurisdiction to decide the Stay Petition despite no specific provision for review in the Central Excises & Salt Act, 1944 or CEGAT (Procedure) Rules. The Special Bench relied on established judicial practice allowing review with sufficient justification, emphasizing the importance of judicial propriety in deciding the application.Consideration of a New Stay Petition:The applicants' Misc. Application, although framed as a revision/review of the Stay Petition order, was treated as a new Stay Petition by the Special Bench. The legal principle that an applicant can file a new Stay Petition based on fresh facts or legal provisions was acknowledged. The Special Bench highlighted the applicants' ability to present a new Stay Petition if new grounds are identified, illustrating the flexibility in the legal process to address evolving circumstances.Interpretation of Sec. 11A for Recovery of Erroneously Refunded Duty:The crux of the issue revolved around the interpretation of Sec. 11A concerning the recovery of erroneously refunded duty. The applicants argued that the Department must follow the procedure outlined in Sec. 11A, which necessitates the issuance of show cause notices for recovery. Citing relevant case law, the applicants contended that show cause notices were pending adjudication, indicating the Department's obligation to follow the statutory procedure for recovery. The Special Bench concurred with the applicants, emphasizing that the Department's recovery must align with the statutory provisions, specifically Sec. 11A, and cannot solely rely on the impugned order for recovery.Prima Facie Case for Waiver of Pre-Deposit Amount:After deliberation, the Special Bench concluded that the applicants had a prima facie case regarding the interpretation of Sec. 11A and the Department's recovery process for erroneously refunded duty. Consequently, the Special Bench allowed the application, waiving the requirement for the pre-deposit of the allegedly erroneously refunded amount. The decision was based on the applicants' prima facie case and the legal obligation for the Department to adhere to the prescribed recovery procedure outlined in Sec. 11A.This comprehensive analysis of the judgment highlights the key issues addressed by the Special Bench regarding jurisdiction, the consideration of a new Stay Petition, the interpretation of statutory provisions for recovery, and the decision to waive the pre-deposit amount based on the applicants' prima facie case.