TaxTMI 
TaxTMI 
2016 (11) TMI 218
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....y Commissioner(AR) for the respondents at Sl.No.9 to 11. Shri Arun Kumar, Asst. Commissioner(AR) for the respondents at Sl.No.4, 6 & 7. Shri P.S. Reddy, Asst. Commissioner(AR) for the respondents at Sl.No.13 to 15. Shri Guna Ranjan, Superintendent(AR) for the respondents at Sl. No. 16 to 20 [Order per: Madhu Mohan Damodhar] Issue involved in all these 24 applications/cases being the same, they are being heard together and are disposed of by this common stay/miscellaneous order. 2. Of the above 24 applications, in 18 cases, applications have been filed seeking stay of recovery of amounts of duty with interest and penalties demanded in the impugned orders which denied the duty exemption provided under Notification No.12/2002-Cus date 17.03.2012 for import of steam coal. The adjudicating authorities in these cases have confirmed the demands on the ground that the coal imported should be correctly classified as Bituminous coal under Tariff entry 2701 12 00 instead of 2701 19 20 as declared by the appellants at the time of import. The details of demands in these appeals are as shown in the following table: Sl. No Appeal No. Appellant Duty involved Amo....
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....913/- 7.5% of duty Rs.3,12,55,553/- 23. C/21554/2014 Jaiprakash Associates Ltd. Rs.38,13,51,224/- 50% of duty and interest thereon Rs.6,98,89,799/- 24. C/22037/2014 Hi-Tech Mineral Industries Covai (P) Ltd. Rs.1,76,37,407/- 50% of duty and interest thereon NIL 4. The case of the department is that sub heading Note 2 of Chapter 27 defines Bituminous coal as Coal which possesses volatile matter value, on DMMF, exceeding 14% and calorific value on MMMF basis greater than 5833kcal/kg and since the imported goods satisfy the above two parameters the same is Bituminous coal which would fall under the Customs Tariff Heading 2701 12 00. 5. The submissions made by counsels/consultants appearing for appellants(Shi. Karan Talwar, Sh. Y. Sreenivasa Reddy, , Sh. T. Jagpathi Rao, Sh. V. J. Sankaram , Sh. B. N. Gururaj, Sh. Gopal Mundra, Sh. M.S. Nagaraja, Sh. Kartik Kurmy, Sh. S.B. Sharma and Sh. Rubeen Jairam) being more or less on the same lines, their arguments are briefly summarized as below:- i) As there is no statutory definition for 'steam coal', the same should be interpreted in the commercial sense or....
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....Tri.). In view of the conflicting decisions by the two co-ordinate Benches on the issue, the Chennai Bench referred the matter to the Larger Bench in the case of Tamilnadu Generation & Distribution Corporation Limited [2015 (316) E.L.T. 305 (Tri. - Chennai)]. ix) In the case of Chettinad Cement Corporation Limited, the Commissioner of Customs, Trichy filed appeals before the Hon'ble Madras High Court against the decision of the Chennai Bench referring the matter to the Larger Bench and also questioning the correctness of the CESTAT's Order waiving the condition of pre-deposit and granting stay. The Honourable Madras High Court dismissed the appeals filed by the Commissioner as reported in 2015 (325) E.L.T. 644 (Mad.). In Para 24 of the decision, the Honourable High Court observed that "the Tribunal has proceeded to follow its own precedents, where, whenever a reference is made to a Larger Bench, they have granted a total waiver. Therefore, we are of the considered view that the exercise of discretion by the Tribunal need not be interfered with." Accordingly, the appeals filed by the Commissioner were dismissed. The Honourable High Court, however, directed the Tribunal to constit....
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....pon the decision in the case of Coastal Energy Pvt. Ltd Vs. Commissioner of Cus, Ex & ST Guntur reported at 2014 (310) E.L.T. 97 (Tri-Bang) wherein Tribunal has ruled out the availability of benefit of Notification No. 12/2012-CE (Sl. No. 67) by comparing the imports to goods manufactured in India, and denied the benefit of Notification to the importer. b) The Appellant submits that they are entitled for the benefit of Notification No.12/2012-CE (Sl. No. 67) in view of the decision of the Apex Court in the case of SRF Ltd V/s. Commissioner of Customs, Chennai reported at 2015 (38) E.L.T. 607 (SC). The Appellant also submits that the review filed by the department in the case of SRF Ltd is dismissed in Review Petition (C) No.2440/2015. c) The Honourable Tribunal in the impugned stay order had relied on the decisions of Asian Natural Resources (India) Ltd V/s. Commissioner of Customs reported at 2014-TIOL-2204-HC-AHM-CUS, Millenium Steel (I) Private Ltd. V/s. Commissioner of Central Excise, Goa reported at 2015-TIOL-870-CESTAT-MUM and Gupta Coal India Private Ltd & Finolex Industries Limited reported at 2015-TIOL-748-CESTAT-MUM.and directed the Appellant to deposit 50% of the a....
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....bunal in the case of Hindustan Lever Ltd. V/s. CCE, Mumbai 2006 (202) ELT 177 (Tri-LB) wherein it was held that notwithstanding what may have been done by any authority below the Supreme Court, when the Supreme Court pronounces on the true position of law any decision rendered by any other authority contrary to that, is required to be regarded as an error which is apparent on record and rectification of such an error is permissible under the law. 8. On behalf of the department, the Special Counsel Shri. P.R.V. Ramanan, who appeared in respect of appeals no. C/22001/2014, C/21529/2014, C/21849/2014, C/22059/2014 made the following main submissions opposing the stay application: i. That the judgment of the Tribunal in Coastal Energy case 2014(310) ELT 97 (Tri-Bang), in which the issue was decided in favour of the Revenue is fully applicable to the facts of the appeals. Although the said decision has been appealed and admitted by the Hon'ble Supreme court, no stay has been granted against operation of the order and therefore the ratio of the said decision is very much applicable to these appeals. ii. The decision of Chennai Tribunal in Tamil Nadu Generation & Distribution cas....
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....ubstantially the same as the final relief sought in the proceeding, is based on the ground that indiscriminate grant of such interim reliefs are capable of producing public mischief (see, CCE V/s Dunlop India Ltd.). this Court opined that the injury, if any is, to the party approaching the Court is reversible and the public interest in certain instances should outweigh the temporary inconvenience of individuals", [Concurring judge] In the light of the above observations, which touch on the fundamental principles underlying the grant of interim relief', full waiver of deposit is not justified. vi) Revenue would also like to place reliance on the judgement of the Honourable High Court of Andhra Pradesh in the case of Hira Ferro Alloys Ltd V/s. CCE, Visakhapatnam [2015 (315) ELT 376 (376)], a copy of which is annexed. Observations of the Court at Paras 5 to 7 are relevant in the context of the present Stay applications. Holding that the said case was in the category of an arguable one of the Court has held that condition of pre-deposit of 50% specified by the commissioner (Appeals) was not unjustified. For the same category of cases the Mumbai High Court has taken a contrary ....
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.... 6. The Hon'ble High Court of Mumbai in the case of BMM Ispat Ltd. reported in 2016(331) ELT 363(BOM) has ordered as follows (para 7): 7.We find that the question or the issue was arguable.? Now that there are rival contentions and equally differing views of the Benches of the Tribunal, then, all the more this was not a case for imposition of any condition of pre-deposit. The waiver application should have been granted without imposing any conditions. If the Larger Bench of the Tribunal is to resolve the matter, then all the more, without expressing any opinion on the merits of the controversy, so also on the point whether mere reference to Larger Bench should necessarily result in total waiver and unconditional stay, we are of the view that interest of justice will be served if each of these appeals are allowed. The impugned orders of the Tribunal are quashed and set aside. There will be an unconditional waiver of the requirement of pre-deposit. The condition in that behalf need not be adhered to. There will be an unconditional stay of the recovery of tax pending appeals. However, we clarify that we have not expressed any opinion on the afore referred question or the controver....
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....ate Tribunal, arises out of Section 129E. The first proviso to Section 129E confers discretion upon the Commissioner (Appeals) as well as the Appellate Tribunal to dispense with such deposit subject to such conditions as it may impose so as to safeguard the interest of the Revenue, if the Appellate Authority is of the opinion that the deposit of duty and interest demanded or penalty levied would cause undue hardship to such person. What constitutes undue hardship has repeatedly come up for consideration before various Courts, including the Supreme Court. Since any payment demanded is contested by every assessee as causing hardship, the Courts have grappled with this question and laid down certain parameters. Therefore, generally in all cases, the Tribunal is bound to look into the question of undue hardship. The question of undue hardship has in-built within itself, the question whether the assessee has at least a prima facie case to persuade the Tribunal to come to a different conclusion that the orders of the Authority under appeal. 24. But, in these appeals before us, the Tribunal has proceeded to follow its own precedents, where, whenever a reference is made to a Larger Benc....
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....tter afresh, however, considering the fact that in the case of similarly situated assessees, the Tribunal has already granted complete waiver of pre-deposit and it is a convention to grant waiver of pre-deposit in case the matter is referred to the Larger Bench, no fruitful purpose would be served in remanding the matters to the Tribunal. 16. For the foregoing reasons, the petitions succeed and are accordingly, allowed. The impugned orders dated 15-1-2015 passed by the Tribunal are hereby quashed and set aside. The appeals filed by the petitioner are hereby restored to file. The miscellaneous applications for modification are hereby allowed. The order dated 29-9-2014 passed by the Tribunal directing the petitioners to deposit 50% of the amount of customs duty which had been confirmed by the adjudicating authority is hereby modified by granting waiver of pre-deposit of the duty along with interest and penalties till the disposal of the appeals. Rule is made absolute accordingly in each of the petitions with no order as to costs. 9............ 10. We find that the aforesaid High Court decisions are squarely applicable to the present petition. Consequently, we waive pre....
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....le number of appellants on same issue. None of the Tribunal orders where predeposit has been waived has been appealed against by the Department or stay obtained of operation thereof. In this situation, where some of the appellants have obtained waiver of predeposit which has not been challenged or stayed by higher appellate forum , it would tantamount to undue hardship for the remaining appellants on identical issue if predeposit is insisted upon them. Further, as a Tribunal, this appellate forum is bound to follow the ratio of the judgments laid down by the jurisdictional High Court or if no such judgment is available, of the other High Courts and/or Hon'ble Apex Court. This is the judicial discipline that is required of us to follow. This is what the doctrine of stare decisis enjoins us to do. 14.1. Special Counsel has also argued that if the nature of a case is an arguable one, as in the instant case where the Bangalore Bench has held the issue in favour of the Revenue, stay cannot be granted without order of pre-deposit; In this regard he relied upon the ratio in the judgment rendered by A.P. High Court in the case of Hira Ferro Alloys case reported in 2015 (315) ELT 376 (A.....
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....st the Coastal Energy case but a series of such decisions have been appealed to and admitted by the Hon'ble Apex Court for example :- 1. M/s. Maruti Ispat and Energy Pvt. Ltd. 2. M/s. Maheswari Brothers 3. M/s. Coastal Energy Pvt. Ltd. 4. M/s. Deccan Cements Ltd. 5. M/s. Hiranyakeshi Sahakari Sakkare Karkhane Niyamit 6. M/s. Agarwal Coal Corporation Pvt. Ltd. 7. M/s. Kesoram Industries 8. M/s. West Coast Paper Mills Ltd. 16. In the circumstances, when at least eight cases on the same issue have admitted by Hon'ble Apex Court, we are of the opinion that the following pertinent observation of the Hon'ble Apex Court in UOI Vs. West Coast Paper Mills ltd. [2004(164) ELT 375 (SC)], will be applicable to this case. 38. In the aforementioned cases, this Court failed to take into consideration that once an appeal is filed before this Court and the same is entertained, the judgment of the High Court or the Tribunal is in jeopardy. The subject matter of the lis unless determined by the last Court, cannot be said to have attained finality. Grant of stay of operation of the judgment may not be of much relevance once this Court grants special leave and decides to h....