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2015 (10) TMI 1848
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....d two consignments each, of Indonesian steam coal for use in its Sachin factory and Pandesara factory respectively, during May 2014 and paid dues by availing concessional duty under the Notification No.12/2012-Customs. Two show cause notices came to be issued to the petitioner by the first respondent Commissioner, on account of all India investigation on imports of steam coal by DRI seeking re-classification of steam coal as bituminous coal and demanding differential duty with interest and imposition of penalties. The show cause notices culminated into two orders-in-original demanding differential duty of Rs. 52,71,719/- in respect of Unit-I and Rs. 56,46,961/- in respect of Unit-2 with interest, by reclassifying imported coal as bituminous coal. Penalties of Rs. 8,00,000/- and Rs. 8,50,000/- respectively, also came to be imposed on the two factories. Against the two orders-inoriginal, the petitioner company preferred two appeals with stay applications before the Customs, Excise and Service Tax Appellate Tribunal, Ahmedabad (hereinafter referred to as the "Appellate Tribunal"). On the stay applications filed by the petitioner, the Appellate Tribunal passed an order dated 29.9.2014,....
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.... the applications filed by the petitioner and that on the earlier occasion, the learned counsel sought time for compliance of stay orders and, accordingly, did not find any reason to entertain the modification applications at that stage and dismissed the appeals for non-compliance of the said orders. The modification applications filed by the petitioner also came to be dismissed. 3. Mr. S. S. Iyer, learned counsel for the petitioner invited the attention of the court to the order dated 8.12.2014 passed by the Tribunal in the case of M/s. Rainbow Papers Ltd. wherein the Tribunal had waived pre-deposit of duty along with interest and penalties, to submit that when in an identical case the Tribunal had waived the entire pre-deposit, the petitioner being similarly situated was entitled to such benefit. It was submitted that it is a convention that if the matter is referred to the Larger Bench the pre-deposit should be waived and hence, the Tribunal was not justified in not granting similar relief. 3.1 In support of his submissions, the learned counsel placed reliance upon the decision of the Bombay High Court in the case of Union of India v. Sir Hurkisondas Norottam Hospital & Me....
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....ecial leave to appeal. 3.4 Reliance was also placed upon the decision of the Madras High Court in the case of Venus Rubbers v. Additional Commissioner of Central Excise, Coimbatore, 2014 (310) ELT 685 (Mad.), wherein the question of law raised by the appellant was as to whether the Commissioner (Appeals) has the power to review his own order of pre-deposit, the court found that there was no provision of law under the Central Excise Act, which gives power to the Commissioner (Appeals) to review his order. But such a power is available to the Tribunal under section 35C(2) of the Central Excise Act to rectify any mistake apparent on the record. 3.5 Reference was made to the various orders passed by the different Benches of the Tribunal, wherein it has been observed that once the issue is referred to the Larger Bench, as a convention, waiver of pre-deposit of the amount involved, needs to be allowed. It was submitted that, therefore, it is a settled convention that whenever a matter is referred to the Larger Bench, waiver of pre-deposit is granted by the Tribunal. It was, accordingly, urged that the Tribunal was not justified in not modifying its earlier order and granting waiver....
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....erein it has been held thus: "7. The CEGAT must remember that it has no power to review its own order. No such power has been conferred on CEGAT by the legislature. In absence of such power, it cannot exercise review jurisdiction. Party before CEGAT can only seek modification of the order of CEGAT. For seeking modification, a prima facie; case in that behalf is required to be made out in the pleadings. No application for review in the garb of prayer for modification can be entertained by the Tribunal. 8. Our experience shows that in almost all the applications moved to seek modification of the Tribunal's order contain only grounds of review. They are freely entertained by the CEGAT and the same are sometime accepted or rejected on merits with detailed order. Such exercise, apart from labour, must be consuming major part of its working hours. This wastage of labour and working hours can easily be saved by the CEGAT, if application moved in this behalf is prima facie, examined by CEGAT to find out whether any change in circumstances after the previous order, is shown with sufficient material in that behalf; or any other reason prima facie; exists warranting modifica....
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....ted assessees who have deposited the amount of pre-deposit as directed by the Tribunal are concerned, merely because the said assessees have not made any application for modification would not preclude the petitioner from moving such an application. As regards the conduct of the petitioner, it was submitted that the modification application was filed before the dismissal of the appeal and that the petitioner was duly entitled to file such application. 5.1 The learned counsel further made reference to section 129C of the Customs Act, 1962 and more particularly, sub- sections (6) and (7) thereof to submit that the provisions of the Code of Civil Procedure would be applicable to the limited extent specified therein and no more. It was contended that the Customs Act is a complete Code in itself and the provisions of the Code of Civil Procedure would not be applicable to the proceedings thereunder, under the circumstances, reliance placed upon the provisions of Order XLVII of the Civil Procedure Code is misconceived. 5.2 The learned counsel also submitted that the decision of the Bombay High Court in the case of Baron International Ltd. v. Union of India B (supra) would not be app....
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.... a Larger Bench due to difference of opinion between the CESTAT benches at Bangalore and Chennai and that the Ahmedabad Bench of the CESTAT has been subsequently extending the benefit of unconditional stay for coal imported from Indonesia in identical matters. In the aforesaid backdrop, the petitioner sought modification of the order of pre-deposit seeking complete waiver thereof. By the impugned order dated 15.1.2015, the Tribunal has once again dismissed the applications as well as the appeal on the ground that it did not find any merit in the applications filed by the applicant. 8. On a perusal of all the three orders passed by the Tribunal; firstly on the stay application filed by the petitioner as well as on the modification applications filed by it, what emerges is that none of the orders are reasoned orders assigning any reasons for asking the petitioner to pre-deposit 50% of the customs duty or as to why the application for modification should not be accepted. All that is stated in the orders dismissing the applications for modification is that the Tribunal does not find any merit in the applications; however, the merits of the applications have not been discussed in any....
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....on 15.12.2006 the petitioner therein filed an application for modification of the stay order dated 12.10.2006 on the ground that there was a change in circumstances, inasmuch as, on the same issue of classification, the Tribunal had referred the matter on 23.11.2006 to the Larger Bench of the Tribunal not agreeing with the decision of the Tribunal in the case of M/s. Favourite Food Products v. CCE. The Tribunal in the order impugned in the said petition had observed that since the pre-deposit has not been made, the appeal stood dismissed on 12.12.2006. Such order was subject matter of challenge before this court in the said petition. This court held thus:- "7. On a bare perusal of the impugned order made by the Tribunal two things are apparent. Firstly, though the petitioner had been directed to deposit 50% of the amount payable within eight weeks from the date of the order, that is, on or before 12.12.2006, the Tribunal had directed that the matter be posted for reporting compliance on 20.12.2006. Secondly, prior to the last date of making the pre-deposit, on 23.11.2006, the Tribunal had itself referred the decision in the case of Favourite Food Products v. CCE (supra) to....
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....order; more so, when it was the case of the petitioner that it was the consistent practice of the Tribunal to grant full waiver in such circumstances. 13. A perusal of the decisions of the Tribunal which have been placed on record by the learned counsel for the petitioner, shows that in Bhatia Global Trading Ltd. v. Commissioner of Customs (Import), Mumbai, 2015-TIOL- 1271-CESTAT-MUM, the Tribunal has noted that the Bench in the case of Mohit Minerals Pvt. Ltd. has taken a view that once the issue has been referred to a Larger Bench, as a convention, waiver of pre-deposit of the amount involved needs to be allowed. In NSL Sugars v. CC, CE & ST, Guntur, the Tribunal by an order dated 5.2.2015 had waived pre-deposit of the liability of duty, interest and penalty and granted stay of all further proceedings in view of the order of reference to the Larger Bench. In Gupta Coal India Pvt. Ltd. v. Commissioner of Customs, Mumbai, the Appellate Tribunal, West Zonal Bench at Mumbai by an order dated 29.4.2015 found that the issue of eligibility of Notification No.12/2012-Cus dated 17.3.2012 to the coal imported by various importers is referred to the Larger Bench of the Tribunal. The cour....