TMI Blog2013 (9) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... plication vide the same impugned order along with the dismissal of its appeal - Even if the appellate authority deemed it fit to reject the modification application, interest of justice required him to extend the period to deposit the directed amount and to let the applicant also know about the same - In the absence of intimation about the decision on the modification of the application, the appellant cannot be expected to know about the same - As such, dismissal of the appeal for non-compliance along with rejection of the modification application violates the basic principle of natural justice. Dissenting Opinion – Member (Technical) was not in consonance of the Judgement of the Member (Judicial) therefore he delivered a Separate Judgement - Law being succinctly clear on the bar of exercise of power of review by an authority not expressly vested with such power by law and no Court can legislate on such power - In view of the majority opinion after waiving the requirement of pre-deposit for hearing the appeal filed with the Tribunal - the order-in-appeal was set aside with liberty to the appellant to comply with Stay Order issued by the Commissioner (Appeals) directing pre-depos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugned order had rejected the modification application as also dismissed the appeals vide the same order. 4. We find that the Tribunal in the case of Prem Nath Monga Foods Beverages Pvt. Ltd. v. CCE as reported in [1993 (63) E.L.T. 245 (Tri.)] has held that the Commissioner (Appeals) has powers to modify the stay order passed by him. Non consideration of the said modification application results in failure of justice. The Court also observed that inasmuch as no show cause notice was issued to the appellants prior to the dismissal of the appeal for non-compliance with the stay order, the impugned orders are required to be set aside and matter needs to be remanded. To the similar effect is the Tribunal s decision in the case of Premchand Agarwal Ors. v. CC, Calcutta as reported in [1998 (29) RLT 168 (CEGAT). Tribunal while taking note of the fact that modification application as also the appeals stand dismissed by one order only, observed that there is a patent illegality in the order of the Commissioner (Appeals) inasmuch as the application for modification filed by the applicants was required to be disposed of independently, after giving a chance of personal hearing to the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y stated the facts of the case are that the Commissioner (Appeal) called for pre-deposit of a part of the duty confirmed, and waiving the rest of the duty and penalty, for hearing of the appeal. Appellants filed an application for modification of stay order without giving any reason why the earlier order should be modified or why the appellant could not comply with the order. The Commissioner (Appeal) did not find any merit in the modification application. He dismissed the modification application and appeal together. Basically the appeal is dismissed because the condition of stay order has not been complied with. 10. The Appellants rely on the decision of the Tribunal in Prem Nath Monga Foods and Beverages v. CCE - 1993 (63) E.L.T. 245 (Tribunal) to the effect that the Commissioner (Appeal) should have issued a Show Cause Notice in such cases before rejecting the appeal. Such a procedure is not followed by any judicial forum and there is no justification for burdening the Commissioners (Appeal) with such a procedure. If such procedure is prescribed litigants can keep filing applications for modification and Commissioners (Appeal) will be busy issuing Show Cause Notices in such c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther pre-deposit in this matter does not meet the ends of justice. I am using the expression ends of justice with an understanding that Revenue also needs justice and not just the assessee. I also take note of the fact that as per Section 35F of Central Excise Act, pre-deposit is the rule and waiver of pre-deposit is an exception. 15. So in my view if the appellant, at this stage wants to get the benefit of a hearing before the Commissioner (Appeals) the appellant should be asked to make the pre-deposit called for by the Commissioner (Appeals). POINT OF DIFFERENCE OF OPINION In the facts and Circumstances of the case whether the appeal should be remitted back for issuing order on application for modification of stay application filed by the Appellant before the Commissioner (Appeals) and then decision of the appeal as ordered by Member (Judicial)? Or Whether the applicant should be asked to make the pre-deposit ordered by the Commissioner (Appeals) and then argue his case before the Commissioner (Appeals) as ordered by Member (Technical)? The Registry may place the matter before the President CESTAT for resolving the above difference in views. 16. After going th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts by order dated 21-4-2010 for their failure to make-deposit of Rs. 20.00 lakhs ordered by him vide Stay Order No. 02-03(DK) JPR 1/2010, dated 24-2-2010 and failing to justify (in the application dated 15-4-2010 filed by the appellants) the reason why extension of time for pre-deposit of the said amount shall be allowed or the reason why terms of the stay order shall be varied. 18. At the outset of hearing of the present reference, objection of Revenue was that instead of pronouncing the point of difference recorded by both members of the Bench on 15-3-2012 at page 8 of the Misc. Order No. 264 of 2012, a separate order recorded by learned judicial member at page 9 and 10 of the said Misc. order was pronounced on 16-3-2012. The order so pronounced being recorded subsequent to recording of the difference by members that should not guide the reference. Learned counsel appearing for appellants had no answer to such objection of Revenue. 19. When objection as above came up, record was examined. It was noticed that the Registry while placing the matter before Hon ble President for exercise of his administrative jurisdiction to order the reference, did not mention about the order ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing up precedents for the future. Transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judges and decision makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor (1987) 100 Harward Law Review 731-737). If a Judge or a quasi judicial authority is not candid enough about his/her decision making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism. 23. Judicial proceedings always require : (i) no man shall be a judge in his own cause and (ii) justice should not only be done but manifestly and undoubtedly seem to be done. These maxims yield the result that no party to litigation can be dealt to the detriment of justice. Essence of fair and objective administration of law is that the decision of the Judge or the Tribunal must be absolutely unfettered by any extraneous considerations and what law and the provisions of law may legitimately do cannot be permitted to be done by any other means. 24. Authority exercising appellate jurisdiction is left absolute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interim applications. So also, the law laid down by Apex Court in Dunlop India Ltd. - 1985 (19) E.L.T. 22 (S.C.), Vijay D. Mehta - 1988 (4) SCC 402 : 1989 (39) E.L.T. 178 (S.C.), Benera Valves - 2006 (204) E.L.T. 513 (S.C.) = 2008 (12) S.T.R. 104 (S.C.) and Ravi Gupta - 2009 (237) E.L.T. 3 (S.C.) = 2010 (20) S.T.R. 264 (S.C.) govern the field. Main purpose of passing an interim order is to evolve a workable formula or a workable arrangement to the extent called for by the demands of the situation keeping in mind the frame work of the legislation and to ensure that no irreparable injury is occasioned. Courts are therefore required to strike a delicate balance after considering the pros and cons of the matter lest larger public interest is not jeopardized and both litigants before the Court are equally dealt under law. Every effort is made to ensure that no prejudice is occasioned to the litigants and no remand of a matter is made hurriedly to virtually grant substantial relief to a party to whom that is not due. 28. At this stage it would be proper to reproduce the anxiety of Apex Court expressed in para 7 judgment in ACCE, West Bengal v. Dunlop India Ltd. Others - 1985 (19) E. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mes that public authorities function properly and bona fide with due regard to the public Interest, a Court must be circumspect in granting interim orders of far reaching dimensions or orders causing administrative, burdensome inconvenience or orders preventing collection of public revenue for no better reason than that the parties have come to the Court alleging prejudice, inconvenience or harm and that prima facie case has been shown. There can be and there are no hard and fast rules. But prudence, discretion and circumspection are called for. There are several other vital considerations apart from the existence of a prima facie case. There is the question of balance of convenience. There is the question of irreparable injury. There is the question of the public interest. There are many such factors worthy of consideration. We often wonder why in the case indirect taxation where the burden has already been passed on to the consumer, any interim relief should at all be given to the manufacturer, dealer and the like : 29. Ld. Commissioner (Appeals) appears to have been guided by the result of investigation appearing in para 2 of Stay Order No. 02-03 (DK) CE/JPR - I/2010 dated 23 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of being covered by invoices. 33. Statement dated 6-10-2006 recorded from Shri Sunil Singh, Proprietor of M/s. Biwadi Behrore Road Lines revealed that copies of blank GRs of the said transport concern was made available to the appellant company without providing vehicles. Such blank GRs were instrumental to cause subterfuge to Revenue recording false transportation of goods without the same actually transported. Recovery of 4.5 Lakhs of cash from the premises of Shri J.D. Gupta, Director of the appellant company in the course of search revealed that such amount was outcome of sale proceed of HR Coils sold as such showing those were rejected/defective goods. 34. Some of the aforesaid material facts backed by evidence appears to have guided the first appellate authority to direct pre-deposit of Rs. 20,00,000/- Lakhs for hearing the appeal. Upon failure by appellants to make such pre-deposit, appeals were dismissed. 35. In the opinion of the ld. Judicial Member modification application dated 15-4-2010 moved before first Appellate Authority ought to have been disposed by a separate order and informed to the appellant and if that authority deemed fit to reject modification applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 SC 1457 held that review is a creature of statute but not an inherent power and cannot be entertained in the absence of a statutory provision in that regard. So also want of jurisdiction to review could not be cured by waiver and court is not obliged to grant relief to a party disentitled to the same. 39. In the case of Dr. (SMT) Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalaya, Sitapur (UP) and Others - 1987 (4) SCC 525 = 1987 (32) E.L.T. 8 (S.C.) it has been held that it is now well settled that a quasi judicial authority cannot review its own order unless the power of Review is expressly conferred on it by the statute under which it derives its jurisdiction. It has further been reiterated in the case of Kalabharati Advertising v. Hemant Vimal Nath Narithania and Others - (2010) 9 SCC 437 that unless the statute or rules so permit, a review application is not maintainable against judicial or quasi-judicial orders. In the absence of any provision in the statute granting an express power of review, it is manifest that a review can not be made and order of review, if passed, is ultra vires, illegal and without jurisdiction [Vide Patel Chunibhai Dajibha v. Narayanrao Khan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... saved its labour and time and would not have been required to devote nine pages for writing impugned order. We direct that henceforth the Tribunal shall first make prima facie; enquiry whether application needs consideration on merits as indicated by us hereinabove before considering any application for modification of its previous order on merits. If the Tribunal finds that prima facie case for modification is made out, then, only a Tribunal shall deal with such application on merits. The Tribunal shall be justified in rejecting frivolous applications at the threshold. 42. On behalf of appellant it was argued by ld. Counsel that the application dated 15-4-2010 was not considered, although the appellant stated that it is not in a position to deposit the amount in terms of stay order due to some unavoidable circumstances. It was also submitted that Rs. 15,00,000/- was deposited before adjudication even though the goods came from SAIL S Bharatpur and Jaipur Dept. He relied on the decision in the case of Ador Polycontainers Ltd. v. CCE, Aurangabad reported in 2001 (42) RLT 802 (CEGAT) = 2001 (130) E.L.T. 821 (Tribunal) to submit that when the appellant failed to deposit the amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... financial difficulty was before ld. Commissioner (Appeals) at the stage of stay hearing itself and the application dated 15-4-2010 is on the self same ground of relief claimed asking the first appellate authority to review his order which is not permissible under law. Therefore, he has rightly acted in accordance with law in absence of express or implied power to review his own order as has been held in the series of Apex Court decisions discussed herein before. Reliance of appellant on the decision of Ador Polycontainers Ltd. v. CCE, Aurangabad reported in 2001 (42) RLT 802 (CEGAT) = 2001 (130) E.L.T. 821 (Tribunal) is not profitable for no discussion of the judgments of the Apex Court in the said order. Further reliance of the appellant in the case of CCE, Kolkata-II v. Shree Gobinddeo Glass Works Ltd. reported in 2011 (263) E.L.T. 178 (Cal.) = 2011 (23) S.T.R. 177 (Cal.) relates to a decision of dismissal of appeal by Tribunal. It may be stated that Tribunal being final Court of fact, Hon ble High Court directed in para 29 of the judgment that the proper course of dismissal of appeal by Tribunal should be issuing show cause notice before passing such an order in the event of fa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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