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2015 (8) TMI 731 - MADRAS HIGH COURT

2015 (8) TMI 731 - MADRAS HIGH COURT - 2015 (325) E.L.T. 644 (Mad.) - Waiver of Pre-Deposit Appeal against Reference Adjudicating authority passed orders imposing duty for importing bituminous coal in name of steam coal While adjudicating appeal against said order tribunal referred three issues for consideration of Larger Bench under section 130A and granted complete waiver of pre-deposit condition, till disposal of appeals Whether impugned order of tribunal was justified Held that:- i .....

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condition was maintainable If Appellate Authority was of opinion that deposit of duty and interest demanded or penalty levied would cause undue hardship to such person, such deposit can be waived off Since any payment demanded was contested by every assesse as causing hardship, Courts have laid down certain parameters Tribunal proceeded to follow its own precedents, where, whenever reference was made to Larger Bench, they have granted total waiver Therefore, exercise of discretion by Tri .....

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e Customs Act, 1962, questioning the correctness of a common order passed by CESTAT, in a batch of Miscellaneous Applications seeking waiver and stay. 2. Heard Mr.G.Rajagopalan, learned Additional Solicitor General appearing for the appellant-Department of Customs, Mr.Raghavan Ramabadiran, Mr.Muthu Venkataraman and Mrs.Radhika Chandrasekaran, learned counsel appearing for the respondents/assessees. 3. The respondents in these appeals admittedly import coal. They claim that what they import is st .....

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ppeals). The appeals filed under Section 128 were dismissed by the Commissioner (Appeals) and the respondents filed further appeals under Section 129. Along with the appeals, the respondents took out Miscellaneous Applications both for waiver and pre-deposit condition and also for stay of recovery. 4. All the Miscellaneous Applications were taken up together by CESTAT Chennai Bench and an order was passed on 18.11.2014 in Miscellaneous Order Nos.42230 to 42339 of 2014. By the said order, the Tri .....

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Therefore, we are now concerned actually with statutory appeals under Section 130 and none of these are now writ petitions under Article 226. 5. The grievance of the Commissioner of Customs, who is the appellant in all these appeals, is two fold, namely (i) that when there was actually no conflict of opinion between an earlier decision of the Chennai Bench of the Tribunal and a later decision of the Bangalore Bench of the Tribunal, there was no occasion for the Tribunal to refer the issues aris .....

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ed upon the invoices and declarations made by the appellant therein. Therefore, the learned Additional Solicitor General contended that there was no question of law decided by the Chennai Bench in Tamil Nadu Newsprints and Papers Limited for the Tribunal to take a view that the Bangalore Bench has taken a contra view in its decision in Coastal Energy Private Limited v. Commissioner of Customs dated 20.6.2014. It is his further contention that when issues are decided by the two different Benches .....

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and Service Tax Appellate Tribunal to a Larger Bench, of certain issues, on which, the Tribunal was of the opinion that there were conflicting views between two different Benches ? and (ii) Whether in the facts and circumstances of case, the Tribunal was justified in granting a total waiver of the pre-deposit condition in favour of the assessees ? 9. We do not think that we should actually go into the question whether there was a conflict of opinion between the Chennai Bench in Tamil Nadu Newsp .....

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statutory appeal or a writ petition against such a reference. 11. The expression "order" is not defined anywhere in the Customs Act, 1962. But, the fact that the said expression should be understood to mean a decision, cannot be denied. The scheme of Customs Act, 1962 contemplates a four tier mechanism for adjudication. At the first tier, an order of adjudication is passed by the competent authority under Section 122. As against the adjudication so made, an appeal is provided under Sec .....

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the Order of adjudication under Section 122 are appealable under Section 128 to the Commissioner (Appeals). 14. Section 128 uses two expressions. One is "decision" and the other is "order". But, to make an appeal maintainable under Section 128(1), the prospective appellant should satisfy that he is a person aggrieved by such decision or order. This is in view of the fact that Section 128(1) uses the expression "any person aggrieved by any decision or order passed under .....

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r the benefit of persons aggrieved. After the dismissal of the appeal by the Tribunal, there are two alternatives open to an aggrieved person. One is under Section 130 where an appeal is maintainable to the High Court and another is under Section 130-E where an appeal would lie to the Supreme Court. Under Section 130(1), an appeal lies to the High Court from every order passed in an appeal by the Appellate Tribunal on or after the first day of July 2003. Sub-section (1) of Section 130 requires r .....

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stion of law." 17. Though Sub-section (1) uses only the expression "order" and it does not uses the expression "decision", Sub-section (2) of Section 130 qualifies what is stated in Sub-section (1) by specifying that the appeal may be preferred by the Commissioner of Customs or the other party aggrieved by any order passed by the Appellate Tribunal. Therefore, it is clear that unless a person is aggrieved by an order of the Tribunal, an appeal cannot be maintained. A ref .....

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anted in this case. But, we do not agree. The question as to whether there was a conflict or not and the question as to whether the situation warranted a reference or not, are questions that could be answered very well by the Larger Bench. When the issue is still left open for the Larger Bench to come to a conclusion as to whether there is a conflict of opinion and whether it warranted a reference, it is not open to this Court, in an appeal under Section 130(1), to pre-empt a decision on those i .....

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as against a mere reference of certain issues by a Bench of the Customs, Excise and Service Tax Appellate Tribunal, to a Larger Bench. 19. If the appeals have been filed only as against a reference to a Larger Bench, we would simply choose to dismiss the appeals as not maintainable. But, in the cases on hand, the Tribunal has also granted a complete waiver of the pre-deposit condition. As against the complete waiver, these appeals are maintainable. While an appeal is not maintainable against a .....

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ssessees. Paragraph 15 of the common order of the Tribunal, which is under appeal, reads as follows: "Both the Ld. Senior Advocates and other Ld. 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 .....

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ounsel appearing for the respondents that when it is the consistent practice followed by the Tribunal to grant a total waiver in cases of this nature where a reference is made to a Larger Bench, there is no occasion for the Tribunal to make a deviation in these cases. 22. In response to the above contentions, it is argued by Mr.G.Rajagopalan, learned Additional Solicitor General that the very finding that the respondents have a prima facie case was contrary to law and that therefore, they could .....

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