2000 (11) TMI 477 - AT - Central Excise

Stay Order Modified: No Pre-Deposit Required Pending Appeals

The Tribunal modified the Stay Order to dispense with the pre-deposit of the entire duty amount during the pendency of the appeals. The applicants ... Dispensing with pre-deposit of duty as condition for hearing appeal - stay of recovery during pendency of appeal - assembly/erection at site and whether it amounts to manufacture - immovable property - tests of mobility and marketability - effect of subsequent binding precedent on pending appeals - re-examination of merits in view of subsequent decision - exceptional circumstances warranting modification of interim orderDispensing with pre-deposit of duty as condition for hearing appeal - stay of recovery during pendency of appeal - effect of subsequent binding precedent on pending appeals - Modification of the Tribunal's earlier stay order to delete the condition of pre-deposit and to dispense with pre-deposit of the entire disputed duty while staying its recovery during the pendency of the appeals. - HELD THAT: - The Tribunal examined subsequent developments after its earlier Stay Order dated 29-6-2000, namely (a) a difference of opinion in the Tribunal's own Orders in the appellants' case requiring reference to a Third Member, and (b) the Supreme Court's decision in Triveni Engineering & Industries Ltd. holding that installation/erection of a turbo-alternator on a platform constructed on land rendered it immovable property failing the tests of mobility and marketability. In view of these exceptional circumstances and the need to re-examine the merits in light of the later authoritative decision, the Bench concluded that a fresh look at the merits was warranted and that the applicants had made out a case for modification of the interim order. Accordingly, the Tribunal modified its earlier stay order and dispensed with the requirement of pre-deposit of the balance duty and stayed its recovery during the pendency of the appeals. [Paras 8, 9]Applicants' Miscellaneous Applications allowed; pre-deposit of the entire amount of duty dispensed with and its recovery stayed during pendency of the appeals.Final Conclusion: The Tribunal, in view of subsequent internal difference of opinion and the binding Supreme Court decision on installation/erection rendering such items immovable, modified its earlier stay order and unconditionally waived the pre-deposit requirement and stayed recovery of the disputed duty pending disposal of the appeals. Issues:1. Modification of Stay Order regarding pre-deposit of disputed duty amount.2. Whether assembly of Diesel Generating Sets amounts to 'manufacture'.Analysis:1. The Tribunal had earlier directed the applicants to deposit 50% of the total duty amount as a pre-condition for hearing the appeal, subject to which the requirement of pre-deposit of the balance amount was waived. The applicants sought modification of this Stay Order to dispense with pre-deposit of the entire duty amount unconditionally. The ld. advocate argued that subsequent developments, including a Tribunal order in the applicants' favor on a similar dispute and a Supreme Court judgment, supported their case for dispensing with pre-deposit. The Revenue contended that the applicants had only been asked to deposit 50% and there was no ground for waiving the pre-deposit of the balance amount. The Tribunal, after considering the arguments and subsequent developments, modified the Stay Order to dispense with the pre-deposit of the entire duty amount during the pendency of the appeals.2. The main issue in the appeals was whether assembling Diesel Generating Sets on a base frame at the installation site constituted 'manufacture'. The appellants argued that the sets became immovable property due to the installation process and did not amount to manufacture. The Commissioner rejected this plea, stating that the sets remained movable property even after assembly, as they could be removed and sold elsewhere. The ld. advocate highlighted the facts of the case and referred to a Supreme Court judgment on a similar matter to support the appellants' case. The Tribunal, after a detailed analysis and considering the arguments presented, found that the subsequent developments and the Supreme Court judgment warranted a re-examination of the issue. Based on the latest judgment and exceptional circumstances, the Tribunal concluded that the applicants had made a strong case for dispensing with pre-deposit of the balance duty amount, modifying the Stay Order accordingly.In conclusion, the Tribunal allowed the Miscellaneous Applications, modifying the Stay Order to dispense with the pre-deposit of the entire duty amount during the pendency of the appeals.