TaxTMI 
TaxTMI 
2014 (1) TMI 1645
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....ellant filed application before Hon'ble High Court for withdrawal of the appeal on the ground that the Commissioner of Central Excise, Jaipur has subsequently dropped the show cause notices issued to other assessee on the same cause of action and same evidence. Inasmuch as the said order stands passed by the Commissioner during pendency of the appeal before the Tribunal as also before Hon'ble High Court, the said subsequent development is required to be brought to the notice of the Tribunal. Accordingly, the applicant sought to withdraw the appeal from the Hon'ble High Court with the liberty to file review application before the Tribunal. 3. Hon'ble High Court vide its order dated 26-2-2013 referred to the said application and allowed the same and dismissed the appeal as withdrawn as prayed for by the applicant. 4. Subsequently the present applications stand filed by the applicants seeking modification of stay order of the Tribunal on the ground that the Commissioner himself subsequently dropped the original show cause notice issued to other assessee based upon the same set of facts and evidence. One such reference is made to the Commissioner's Order-in-Original No.....
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....e as also the one which were before the Commissioner in the other case are not only identical but the same. Inasmuch as the Commissioner has subsequently dropped the demand and has vacated the SCNs issued to other unit similarly situate, based upon the same set of facts and circumstances, we are of the view that the appellant in the present case also is entitled to unconditional stay. Further the fact that the order of the Commissioner passed in subsequent cases has not been accepted by the Revenue and appeal stands filed against that order, would not change the scenario the present appellant which is on the same footing as other identically situate unit have to be granted at least interim relief. 8. In view of the foregoing discussion, we agree with the ld. Advocate that any direction to pre-deposit would be discriminatory against the appellant. Inasmuch as modification is being sought on the basis of subsequent development in terms of Hon'ble High Court's order, we allow modification application and dispense with condition of pre-deposit. (Pronounced in the open Court on...............) Sd/- (Archana Wadhwa) Member (Judicial) 9. [Per : Manmohan S....
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....brought out by investigation. When Tribunal becomes functus officio after passing an order, no review of such order is possible without inherent power, specific power in that behalf vested with Tribunal. Present waiver granted by judicial member is not rectifying any mistake apparent from record but totally changing operative part of the order bringing that to grant relief to the appellants by review. Therefore I do not agree with the findings of learned Member (Judicial) for modifying grant of stay and propose to record separate order. 11.1 Anti-Evasion wing of Central Excise Commissionerate, Jaipur-I made a surprises visit to the factory premises of M/s. Nirmal Inductomelt Pvt. Ltd., Jetpura, Jaipur on 3-10-2005 (hereinafter referred to M/s. Nirmal). It was found that the said unit was indulging in suppression of production and clandestine removal of M.S. Ingots falling under Chapter 72 of the First Schedule to the Central Excise Tariff Act, 1985 without reflecting in their books of account, without issue of any invoice or bill and without payment of any duty. During the course of checking, certain private records were recovered from the factory premises of M/s. Nirmal In....
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....85/- + Cess Rs. 2472/-). 12.6 In a follow up action in the case of M/s. Shree Steel Rolling Mills (P) Ltd., Jetpura (Jaipur), it was observed that they were showing 90% recovery of their finished goods from M.S. Ingots. A notice demanding duty of Rs. 67,51,128/- was issued to M/s. Nirmal Inductomelt Private Ltd., Jetpura (Jaipur) who subsequently made an application to the Settlement Commission, New Delhi and deposited a duty of Rs. 54,73,791.00 against their liability before final settlement order. The Settlement Commission in their Final Order No. F-583/CE/07-SC(PB), dated 16-7-2007 has finally accepted application for settlement. This confirmed the clandestine activities. 12. Commissioner vide Order-in-Original No. 47/2009 (C.E.), dated 11-12-2009 confirmed demand making probable estimate of actual production of the goods taking into consideration disproportional power consumption that remained unchallenged i.e. the sum production shown in their daily production account and the suppressed production shown in their private records recovered from their factory premises on 10-9-2005. Suppression of actual production from their books of account proved clandestine rem....
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....ed as follow :- Duty demand of Rs. 2,78,08,290/- is on the basis that production of 1 M.T. of rolled products requires 102.09 units of electricity while the average consumption of the appellant during the period of dispute is 263 units per M.T. The power consumption ratio of 102.09 units per M.T. adopted by the department has been taken on the basis of certain investigations conducted by the department in the case of rolling mill of M/s. Shree Sharma Steel Rolling Mills Pvt. Ltd. and, as such, no experiment in the appellant's rolling mill has been conducted by the department to determine the average power consumption for production of 1 M.T. of the rolled products, while there is some substance in the appellant's plea that the power consumption in a rolling mill will vary from one unit to another unit depending upon the technology, skill level of the workers, quality of the power supply and the nature of the finished products, we also find that the fluctuations in average power consumption in the appellant's unit from 160 per M.T. in some months to 316 units per M.T. in other months are too vide and the same cannot be accounted for the above-mentioned factors .......................
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....ity. This is why we are not inclined to follow R.A. Castings as a precedent, the final order in R.A. Castings case wherein no corroborative evidence was found by the Bench. 21. The Revenue's case is further supported by the Madras High Court's judgment in the case of Alagappa Cements Pvt. Ltd. v. CEGAT & C.C.E., Trichy [2010-TIOL-770-HC-MAD-CX = 2010 (260) E.L.T. 511 (Mad.)] cited by ld. JCDR. In that case, the party was alleged to have clandestinely manufactured and removed Portland cement without payment of duty. Their records had shown a large quantity of limestone (raw material) having been quarried but the missing quantity of clinker (intermediate product) produced from the limestone was not explained. The High Court held thus :- "The inference drawn by the second respondent based on shortage of clinkers and the excess quantity of limestone quarried during the relevant period was sufficient enough for the authorities to conclude as to the ultimate quantity of Portland cement which could have been produced from such excess quantity, which were not noted in the stock register, was well justified and we do not find any illegality or irregularity in such a conclusion drawn....
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.... power and must be expressly granted. In view of above, miscellaneous application for modification is liable to be rejected. 19. Miscellaneous application for modification is rejected. (Pronounced in the open Court on .....................) Sd/- (Manmohan Singh) Member (Technical) Difference of Opinion (i) Whether miscellaneous application for modification of stay is to be allowed on the basis of adjudication order of similar nature passed by Commissioner in a different case as held by Member (Judicial)? OR (ii) Whether miscellaneous application for modification of stay is to be rejected on the basis of differentiation of facts as well as on consideration that these is no power of review of Tribunal's order as held by Member (Technical)? Sd/- (Manmohan Singh) Member (Technical) Sd/- (Archana Wadhwa) Member (Judicial) (Pronounced) 20. [Per : Rakesh Kumar, Member (T)]. - Heard both the sides in respect of the point of difference. 21. Shri Bipin Garg, ld. Counsel for the appellant, pleaded that the stay order No. 1780-1781/2012-Excise, dated 23-10-2012 direc....
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....e Tribunal's final order under Section 35C(2) and is not about modification of the stay order, for which the Tribunal has inherent powers as held by the Hon'ble Bombay High Court in case of Sarla Performance Fibers Ltd. v. Union of India reported in 2008 (226) E.L.T. 45 (Bombay) = 2009 (16) S.T.R. 392 (Bom.). He, therefore, pleaded for modification of the stay order dated 23-10-2012 by waiving the requirement of pre-deposit as proposed in the order of the Hon'ble Member (Judicial). 22. Shri V.P. Batra, ld. Departmental Representative, supported the order recorded by the Hon'ble Member (T) and pleaded that Hon'ble Karnataka High Court in the case of CCE v. McDowell & Company Ltd. reported in 2005 (186) E.L.T. 145 (Kar.) has held in clear terms that the Tribunal after having exercised jurisdiction for the purposes of passing an order for waiver of pre-deposit under proviso to Section 35F of the Central Excise Act, cannot modify that order subsequently like an appellate authority nor can keep tinkering with such order as and when applications for modification of the order are filed, that same view has been taken by the Hon'ble Bombay High Court in the case of Baron Internation....
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....v Prasad Rolling Mills Pvt. Ltd., passed by the Commissioner of Central Excise, Jaipur by which he dropped the duty demands against them can be the basis for modification of the stay order dated 23-10-2013 passed in the case against the appellant company and its Director, wherein according to the appellants, identical facts and identical issue are involved. In my view, just because the Commissioner in December, 2012 in cases of M/s. Natani Rolling Mills Pvt. Ltd. and M/s. Shiv Prasad Rolling Mills Pvt. Ltd. has dropped the proceedings against them, this cannot be the justification for modification of the stay order dated 23-10-2012, as it is not known as to whether the facts of the case against the appellants and the facts of the cases against M/s. Natani Rolling Mills Pvt. Ltd. and M/s. Shiv Prasad Rolling Mills Pvt. Ltd. are identical. In the present case, in the stay order dated 23-10-2012 and in the order recorded by Hon'ble Member (Technical), note has been taken of the fact of very wide fluctuation in power consumption per MT of the rolled products manufactured - from 213 units per MT in some months to 511 units per MT in other months during the period from July, 2003 to Sept....
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.... the adjudicating authority had held that the duty liability is of the consignee, the Tribunal had rejected the application for modification of the stay order placing reliance on Hon'ble Bombay High Court's judgment in case of Baron International Ltd. (supra), - observing that the plea regarding inconsistent stand of the adjudicating authority was not made at the time of hearing of the say application and that the Tribunal has no powers to review its order. It is in these circumstances that Hon'ble Bombay High Court, observing that there is always an inherent power in the Tribunal to do justice, directed the Tribunal to consider the documents produced by the petitioner and thereafter dispose of the application for modification of the order of pre-deposit according to law. 24. In the present case, though the impugned Order-in-Original in case of the Appellant company and the Orders-in-Original in the cases against M/s. Natani Rolling Mills and M/s. Shiv Prasad Rolling Mills have been passed by the same Commissioner i.e. CCE, Jaipur-I, it is not known as to whether the facts of the case against the Appellant Company and the facts of the cases against M/s. Natani Rolling Mills....