TaxTMI 
TaxTMI 
2011 (11) TMI 5
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....n Bench (Coram Dr. Justice D.Y. Chandrachud and Mr. Justice A.A. Sayed) reads thus :- " Whether the decision of the Division Bench in SRJ Peety Steel Pvt. Ltd. V/s. Union of India (First Appeal 706 of 2011 with C.A. 5013 of 2011) delivered on 20th July, 2011 remanding the proceedings back to the Tribunal requires reconsideration since the Division Bench did not express any view prima facie that the decision in Nasik Strips Pvt. Ltd. and Mithunlal Gupta Bhavshakti Steelmines Pvt. Ltd. (supra) involved similar facts and particularly when (i) The Tribunal had distinguished the decision in Nasik Strips Pvt. Ltd. and (ii) The Tribunal had followed the decisions of the Supreme Court involving a similar issue of principle ? " 2) Though it is not necessary to refer to the facts for deciding the question referred to this Bench, for better appreciation of the dispute involved herein, we may set out a few facts in the case of M/s. Orange City Alloys Pvt. Ltd. being Central Excise Appeal No.59 of 2011. The appellant M/s. Orange Alloys Pvt. Ltd. ('the assessee' for short) is engaged in the manufacture of excisable goods namely, "iron and steel ingots" ('final products' for s....
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....of the Central Excise Act, 1944 ('the Act' for short) together with interest under Section 11AB of the Act. The assessee was further called upon to show cause as to why penalty under Section 11AC of the Act and under Rule 25 of the Central Excise Rules, 2002 should not be imposed for the alleged contravention of the provisions of law. The assessee opposed the show cause notice by filing a detailed reply. 6) By an order in original dated 1st June, 2009, the adjudicating authority namely, the Commissioner of Customs & Central Excise, Nagpur held on the basis of the electricity consumed during the relevant period and other evidence gathered during the course of investigation that the assessee had unaccounted production of ingots to the extent of 36,318.518 MTS which was cleared clandestinely without payment of central excise duty amounting to Rs.11,51,83,110/- (Rs.11.51 crores). The adjudicating authority further recorded a finding (see para 1.9.3.3. of the order in original) that the assessee to cover up the clandestine clearances, procured bogus purchase invoices of trading goods and cleared the unaccounted finished excisable goods in the garb of clearing the traded goods. The ad....
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....eposit. By the said order, the CESTAT directed all the assessees, except in the case of M/s Shree Steel Castings to deposit 50% of the duty demanded along with 25% of the amount of penalty imposed within the time stipulated therein. 10) Being aggrieved by the order of the CESTAT dated 28th February, 2011, one assessee namely M/s. SRJ Peety Steels Pvt. Ltd. situated at Aurangabad filed Central Excise Appeal (wrongly numbered as First Appeal) bearing No.706 of 2011 and took out Civil Application No.5013 of 2011 seeking waiver of pre-deposit. By an order dated 20th July, 2011 the said appeal as well as the civil application were heard and disposed off finally by consent of the parties. The said order passed by the Aurangabad Bench dated 20th July, 2011 reads thus :- " 1. Admit. By consent, the appeal is heard finally forthwith. The appeal has been preferred by the original assessee against the judgment and order passed by the Customs, Excise and Service Tax Appellate Tribunal ("CESTAT" for short), Mumbai, dated 28.2.2011, on an application for an interim relief. The CESTAT has directed the assessee to deposit 50 per cent of the amount of duty demanded along with 25 per ce....
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....lication stands disposed of. " 11) Challenging the very same order of CESTAT dated 28th February, 2011, these group of six appeals were filed before this Court at Mumbai. When these appeals were placed before the Division Bench of this Court for admission, counsel for the appellants submitted that the appeals be disposed off in terms of the order passed by the Aurangabad Bench in the case of M/s. SRJ Peety Steels Pvt. Ltd. (supra). The Division Bench at Bombay found it difficult to follow the Division Bench decision of the Aurangabad Bench and accordingly formulated the aforesaid question for consideration by the larger Bench. 12) Mr. Shridharan, learned senior Advocate appearing on behalf of the appellants submitted that the Aurangabad Bench has merely remanded the matter without laying down any proposition of law and in such a case, the question of disagreeing with the decision of the Aurangabad Bench does not arise at all. In any event, he submitted that challenging the decision of the Aurangabad Bench dated 20th July, 2011, the revenue had filed Special Leave Petition (S.L.P.) on the very same ground which are sought to be canvassed before this Court and the....
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....ecision in the case of Nasik Strips Pvt. Ltd. (supra) was contrary to the decision of the Apex Court and accordingly ordered pre-deposit, the Aurangabad Bench could not have set aside the impugned decision of the CESTAT without assigning any reasons. Accordingly, counsel for the revenue submitted that the decision of the Aurangabad Bench must be held to be erroneous and contrary to law. 16) We have carefully considered the rival submissions. 17) The basic dispute raised in all these appeals is, whether the CESTAT by the impugned order dated 28th February, 2011 was justified in not following its earlier decision in the case of Nasik Strips Pvt. Ltd. (supra) and directing the appellants herein to make pre-deposit of 50% of the central excise duty confirmed by the adjudicating authority and directing pre-deposit of 25% of the penalty imposed by the adjudicating authority. 18) As noted earlier, the impugned decision of the CESTAT dated 28th February, 2011 is a composite order covering 38 assessees and in the case of one such assessee namely M/s. SRJ Peety Steels Pvt. Ltd. (supra), the Aurangabad Bench has quashed the order dated 28th February, 2011 and dir....
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....P. has been dismissed in limine could still be challenged subsequently. In the present case, the S.L.P. filed against the Aurangabad Bench has been dismissed by the Apex Court by simply recording "Dismissed". Therefore, in the facts of the present case, the dismissal of the S.L.P. against the decision of the Aurangabad Bench in the case of M/s. SRJ Peety Steels Pvt. Ltd. (supra) does not preclude the Co-ordinate Bench from questioning the correctness of the decision rendered by the Aurangabad Bench. Accordingly, the preliminary objection raised by the counsel for the appellants cannot be sustained. 21) The next argument advanced by the counsel for the appellants is that, since the Aurangabad Bench has merely remanded the matter without any direction to the CESTAT to decide the waiver of pre-deposit application in any particular manner, no fault can be found with the decision of the Aurangabad Bench. We see no merit in the above contention because, firstly, without finding fault with the impugned decision dated 28th February, 2011, the said decision could not be set aside and secondly, the Aurangabad Bench in fact has remanded the matter with direction to the CESTAT to pas....
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.... 24) Moreover, the Aurangabad Bench was not justified in directing the CESTAT to pass fresh order after considering the decision of CESTAT in the case of Nasik Strips Pvt. Ltd. (supra) especially when the CESTAT in its impugned decision has categorically recorded a finding that the decision in the case of Nasik Strips Pvt. Ltd. was contrary to the decision of the Apex Court in the case of Bhagwati Ispat Pvt. Ltd. (supra). Without going into the question as to whether the decision of the Apex Court in the case of Bhagwati Ispat Pvt. Ltd. was applicable to the case of the appellant or not, the Aurangabad Bench could not have set aside the impugned order dated 28th February, 2011 and directed the CESTAT to pass fresh order after considering the decision of CESTAT in the case of Nasik Strips Pvt. Ltd.(supra). 25) Similarly, the Aurangabad Bench was not justified in directing the CESTAT to decide the issue of pre-deposit afresh by considering the subsequent decision of CESTAT in the case of Mithunlal Gupta (supra), because, firstly, the Aurangabad Bench has not recorded any finding to the effect that the case of Mithunlal Gupta (supra) was similar to the case of the appellan....