2010 (5) TMI 451 - AT - Central Excise

Stay order - Tribunal had considered the case of the respondents on merits before grant of stay - stay granted in the peculiar facts and circumstances of the case it cannot be said that the Tribunal forbidden from considering the matter on merits afresh Order Reference to earlier decisions - Merely because there was reference to a reported decision dealing with various issues the same cannot be held to have been made the basis for the decision in the case unless the issues which arise for consideration are also the issues which were decided in the reported decision order cannot be said to be based on those decisions unless they also dealt with same issue - reference to those decisions cannot mean that order ignored issues framed therein and influence it - Such issues to be decided independently in accordance with the provisions of law and depending upon the facts of the cases

Summary

Issues Involved:
1. Stay of the impugned order dated 31st August 2009.
2. Early hearing of the appeal.
3. Vacation of the stay order granted on 13th April 2010.

Issue-wise Detailed Analysis:

1. Stay of the Impugned Order Dated 31st August 2009:
The Department issued show cause notices demanding significant sums from the respondents for alleged wrong availment of Cenvat Credit and sought to impose penalties. The Commissioner of Central Excise dropped these notices, leading the Department to challenge the decision. The Department contended that the Commissioner failed to consider the extent of entitlement and utilization of Cenvat Credit for inputs used in manufacturing dutiable goods and whether the manufacturing processes of exempted and dutiable products were interdependent. The Department argued that the impugned order might lead to a refund claim without proper adjudication, thus necessitating a stay.

The Tribunal, however, found that the Commissioner had framed specific issues for consideration and addressed them adequately. References to decisions by the Delhi and Bombay High Courts were relevant to the entitlement for Cenvat Credit and did not imply a decision on refund claims. Consequently, the Tribunal concluded that the impugned order merely dropped the show cause notices, making it non-executable, and thus, the stay was not warranted.

2. Early Hearing of the Appeal:
The miscellaneous application No. 1080 of 2009 sought an early hearing of the appeal due to the significant revenue involved. The Tribunal acknowledged the substantial amount in question and granted the application for early hearing, scheduling the final hearing for 28th July 2010.

3. Vacation of the Stay Order Granted on 13th April 2010:
The respondents filed miscellaneous application No. 373 of 2010 to vacate the stay order. The Tribunal noted that the stay was initially granted without considering the merits due to an adjournment request by the respondents. The Tribunal emphasized that the stay was granted under peculiar circumstances and did not preclude a fresh consideration of the merits.

Upon reviewing the merits, the Tribunal found that the impugned order did not address the refund claim directly and only dealt with the specific issues framed. The references to High Court decisions were pertinent to the entitlement for Cenvat Credit, not to the refund claim. The Tribunal held that the impugned order was non-executable as it merely dropped the proceedings, thus vacating the stay order.

The Tribunal also noted that the Department had filed a separate appeal against the order dated 22nd March 2010, which related to the refund claim. Therefore, the refund issue would be addressed in those independent proceedings, and the dropping of the show cause notices did not justify a stay in the present case.

Conclusion:
The application for stay filed by the Department was dismissed due to the non-executability of the impugned order. The application for early hearing was allowed, and the appeal was scheduled for final hearing on 28th July 2010. The stay granted on 13th April 2010 was vacated, as the impugned order merely dropped the proceedings and did not necessitate a stay.