TaxTMI 
TaxTMI 
TaxTMI 
2016 (11) TMI 982
X X X X Extracts X X X X
X X X X Extracts X X X X
....nalty equal to duty by denying the duty exemption provided under Notification No. 12/2012 - Cus dated 17/03/2012 The adjudicating authority has confirmed the demand on the ground that the coal imported should be correctly classified as bituminous coal under tariff entry 2701 12 00 instead of classifying the same as steam coal under tariff entry 2701 19 20. The appellant submitted that they have deposited towards duty, Rs. 61,57,872/- towards penalty and Rs. 9, 14, 746/- towards interest during investigations. 2. The case of the Department is that sub-heading Note 2 of Chapter 27 defines bituminous coal as coal which processes volatile matter value, on DMMF basis, exceeding 14% and calorific value limit on MMMF basis, greater than 5833 kcal....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ribution Corporation Ltd. Vs. CC, Tuticorin reported in [20159316) ELT 305 (Tri.-Chennai). 5. We further find that at least three High Courts have considered the identical matter agitated before them. 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, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... Advocate submitted that the instant issue has an impact on the entire industry all over the country. We have also expressed our prima facie view in favour of the decision of the Tribunal of Chennai Bench in the case of Tamil Nadu Newsprint & Papers Ltd. (supra). Since we are referring these matters to the Hon'ble President for constitution of Larger Bench, we waive the pre-deposit of duty along with interest and penalty till disposal of the appeals. Registry is directed to place these matters before Hon'ble President for decision on the constitution of Larger Bench." 21. Our attention is invited to a series of orders passed by several Benches of CESTAT, granting a total waiver of the pre-deposit condition, in cases where a refere....
X X X X Extracts X X X X
X X X X Extracts X X X X
....aid 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 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. The second question of law is answered in favour of the assessees. As a matter of fact....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nvention to grant complete waiver of pre-deposit when the matter is referred to the Larger Bench, there was no reason for the Tribunal not to grant similar benefit to the petitioner, that too, without expressing any reason as to why such benefit was not required to be granted. Under the circumstances, the impugned order passed by the Tribunal dismissing the stay application filed by the petitioner as well as the appeal on the ground of non-compliance of the order of pre-deposit cannot be sustained. 15. Ordinarily, while setting aside the order passed by the Tribunal, this Court would remand the matter to the Tribunal for deciding the matter afresh, however, considering the fact that in the case of similarly situated assessees, the Tribunal....