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2015 (5) TMI 290 - HC - Central ExciseValidity of Tribunal's order - Tribunal decided issue on merit instead of deciding the stay application - Denial of CENVAT Credit - Wrongful availment of CENVAT Credit - Held that:- When there is a attempt by the assessee and to demonstrate as to how a arguable case exists and in that process the assessee places reliance on a decision of a High Court and having a bearing of the issue, then, the attempt to not only distinguishes but disregard it cannot be sustained particularly when the Appeal is yet to be heard finally. In that regard, we find that the Tribunal's observations are ex-facie contrary to the settled canons and principles of law. Tribunal's understanding of the principle of per incuriam or stare decisis leaves a lot to be desired. This understanding is completely and totally inaccurate and erroneous. A decision can be said to be per incuriam only when it is rendered disregarding a statutory provision or a binding precedent. Such is not a case which is found. If the Tribunal was of the view that the High Court of Punjab and Haryana's decision was appealed against by the Revenue to the Hon'ble Supreme Court, but though the decision was not interfered with, that Judgment will not bind it because the question of law is kept open by the Hon'ble Supreme Court, then, that is plainly and simply not per incuriam. Tribunal was aware of this settled test namely whether there is a prima facie point or arguable case and whether the appellant assessee or party before the Tribunal had established that there was a financial hardship. However, the Tribunal lost sight of the fact that the tests, as are evolved by the Hon'ble Supreme Court, cannot be taken to such ridiculous extreme or viewed with such rigor that would make it impossible for anybody to obtain an interim stay or a waiver, partial or full, in his favour of the condition of pre-deposit. - Tribunal in reaching the conclusion that the Appellant has not made out any prima facie case extensively dealt with the arguments as if it is called upon to decide the Appeal finally. That it was not called upon by the parties to do so nor was it expected of the Tribunal at the interlocutory or interim stage. All these observations and the entire attempt, is unsustainable in law. - If that right is to be meaningful or purposeful and must be preserved and saved unless there are compelling circumstances, then, imposition of such conditions would vitiate the exercise of the discretionary power by the Tribunal. It lost sight of the fact that the power to grant a stay or waiver of the condition of pre-deposit is discretionary. The discretion must be exercised judiciously and not arbitrarily or capriciously. The Tribunal should not act as per its whims and fancies, but apply settled principles of law even at the interlocutory stage. The Tribunal has completely lost sight of all this, which is evident from the impugned order. It cannot be sustained. It accordingly is quashed and set aside. - Decided in favour of assessee.
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