TaxTMI 
TaxTMI 
2015 (5) TMI 290
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....he appellant assessee along with interest thereon being the ineligible cenvat credit availed by the appellate assessee during April/May 2007. A penalty of Rs. 50,00,000/- had also been imposed under Rule 15 of the Cenvat Credit Rule, 2004. 3. Upon perusal of the order passed by the Tribunal, we are of the view that this Appeal raises substantial question of law. It is, therefore, admitted on the following substantial questions of law: "(i) Whether in the facts and circumstances of the present case and in law was the Tribunal justified in passing a detailed order at the stage of considering a stay application filed by the assessee and virtually concluding the issue? (ii) Whether the Tribunal in the present facts and circumstances and in law erred in applying the test that prima facie an arguable case something which merits attention of the Tribunal and not a case which will ultimately succeed. (iii) Whether under the facts and circumstances, the Hon'ble Tribunal was right in holding that the Appellants are not entitled to utilize the credit of AED (GSI) of Rs. 6,59,36,795/- for payment of BED on tyres, on the ground that Explanation to Rule 3(7)(b) of Cenvat Credit Rules, 20....
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....e even at this interlocutory stage to balance the right and equity. 5. On the other hand, Mr.A.S.Rao appearing on behalf of the Revenue would support this order and submit that the Tribunal has found as to how the assessee is delaying the matter. If the assessee is tried to avail of the cenvat credit on the goods, by erroneously terming them as an inputs, that credit was not available at all. Once it was found to be wrongfully availed of and the demand of the Revenue has been confirmed, then, the Tribunal was justified in insisting on deposit of the entire sum. In the circumstances, this Appeal does not raise any substantial questions of law. It deserves to be dismissed. 6. With the assistance of the learned counsel appearing for both sides, we have perused the Memo of Appeal and the annexures including the impugned order. 7. Before we proceed, we wish to invite the attention of the Tribunal to some pertinent observations of the Hon'ble Supreme Court in the case of United Commercial Bank v. Bank of India AIR 1981 SC 1426. The Hon'ble Supreme Court while considering as to whether an injunction can be granted to restrain encashment of Bank guarantee by resorting to the pow....
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....of this settled test namely whether there is a prima facie point or arguable case and whether the appellant assessee or party before the Tribunal had established that there was a financial hardship. However, the Tribunal lost sight of the fact that the tests, as are evolved by the Hon'ble Supreme Court, cannot be taken to such ridiculous extreme or viewed with such rigor that would make it impossible for anybody to obtain an interim stay or a waiver, partial or full, in his favour of the condition of pre-deposit. 10. In that regard, another principle that this Court has evolved in the decision reported in the case of Inayat Hussain Fakhruddin v. Union of India 1979 Mh. L.J. 515 ought to be borne in mind. "19. Mr. Potey, however, lastly urged an argument based upon sub-rule (2) of rule 16 and the circumstances that a different view has been taken as to the operation of Section 281 and rule 16 by another High Court, thereby indicating that a triable issue arises between the parties. The first contention indicating that a triable issue arises between the parties. The first contention which Mr.Potey raised based upon sub-rule (2) of rule 16 was, that the words used in sub-rule (2....
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....ect of the property which is the subject matter of A.O.No.31 of 1977 confirmation has already taken place and a sale certificate issued. That the department thereafter is not responsible to do anything with reference to the auction purchaser of the property. If that is so, then it would be obvious that the injunction would be infructuous so far as that property is concerned. Interim injunction be issued on the above terms restraining the defendant from confirming the sale." 11. As this Court has succinctly summarized to a prima facie case, then the law laid down is that a case which is not apparently barred by any provisions of law and in respect of which something can be said in favour of the plaintiff. 12. Equally as held by the Hon'ble Supreme Court in the case of Kihota Hollohons v. Zachilhu AIR 1993 SC 412, at page 455 para 51, the purpose of interlocutory orders is to preserve in status-quo the rights of the parties, so that, the proceedings do not become infructuous by any unilateral overt acts by one side or the other during its pendency. If we apply these tests to the facts and circumstances of the present case what we note is that the Tribunal had before it an Appea....
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....by the order of the Commissioner dated 1st November, 2013. It is the correctness of that order which is put in issue in the Appeal before the Tribunal. 14. The argument of the assessee's counsel has been noted and from paragraph 3.1 to 3.5. The Revenue's counsel argued to the contrary and the said arguments are noted from paragraph 4.1 to 4.3. One of the arguments, inter-alia, was that the assessee's reliance on the decision of the High Court of Punjab and Haryana in the case of Goodyear India Ltd. v. CCE 2006 (199) ELT 842 was misplaced. The decision in Goodyear India Ltd. (supra) was challenged by the Revenue in the Hon'ble Supreme Court by filing a Special Leave Petition 6312 of 2008. Though the High Court of Punjab and Haryana decision's in the case of Goodyear India Ltd. (supra) was not interfered with and the Revenue's Special Leave Petition was dismissed, the question of law was kept open. Thus, there is no finality attached to this judgment of Punjab and Haryana High Court and it will not bind the Revenue. 15. In dealing with these contentions, what the Tribunal has noted from paragraph 5.2 onwards is that the credit of duties specified in Clauses ....
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....rd it cannot be sustained particularly when the Appeal is yet to be heard finally. In that regard, we find that the Tribunal's following observations are ex-facie contrary to the settled canons and principles of law. Paragraph 5.7 to 5.8 of the Tribunal's order as read as under: "5.7. If we apply the ratio of the above decision to the facts of the present case, it can be seen that the expressions "leviable under section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 and paid on or after the 1st day of April, 2000" used in the Explanation to sub-rule (6) of Rule 3 of the Cenvat Credit Rules, 2002, should be construed and interpreted as duty ought to be leviable under section 3 of the AED (GSI) Act and ought to have been paid on or after the 1st day of April, 2000. In the present case the duty payment pertained to the period from 16.09.1995 to 02/06/1998 and therefore, the appellant cannot utilize the said credit for payment of basic excise duty for the period after 01/04/2000 and we hold accordingly. 5.8. The reliance placed by the appellant in the Goodyear India Ltd. case does not help for the following reasons. The ratio laid down in those d....
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....tion of law is kept open by the Hon'ble Supreme Court, then, that is plainly and simply not per incuriam. If its larger Bench decision or in the decision in the case of Good Year India Ltd. (Supra), does not take into consideration the meaning ascribed to the expression "Paid", by the Hon'ble Supreme Court of India in some other case, then, as well, there decisions are not per incuriam. A decision can be said to be per incuiram only in the above circumstances. As to what this term means has been amply clarified by the Hon'ble Supreme Court in a decision of its constitution Bench in the case of Central Board of Dawoodi Bohra Community v. State of Maharashtra AIR 2005 Supreme Court 752. The Hon'ble Supreme Court in this context has observed as under: "7........... Per incuriam means of decision rendered by ignorance of a provisions binding decision such as a decision of its own or of a Court of co-ordinate or higher jurisdiction or in ignorance of the terms of a statue or of a rule having the force of law. A ruling making a specific reference to an earlier binding precedent may or may not be correct but cannot be said to be per incuriam." In a decision, Sunita Devi....