TMI Blog2015 (8) TMI 731X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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 Tribunal need not be interfered with – Decided in favour of Assesse. - Civil Miscellaneous Appeal Nos.906, 1118, 1119, 1120, 1146 to 1155, 1306 & 1307 of 2015, CMA No.906 of 2015 - - - Dated:- 6-8-2015 - V. Ramasubramanian And T. Mathivanan,JJ. For the Appellant : Mr. G. Rajagopalan Additional Solicitor General For the Respondent : Mr. Raghavan Ramabadiran, Mr. Muthu Venkataraman, Mrs. Radhika Chandrasekaran ORDER (Delivered by V.Ramasubramanian,J.) All these appeals are filed under Section 130-A of the 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 ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he pre-deposit condition. 6. Assailing the order of the Tribunal, Mr.G.Rajagopalan, learned Additional Solicitor General contended that when a case arose before the Chennai Bench of the CESTAT, in the matter of Tamil Nadu Newsprint and Paper Limited v. Commissioner of Customs, Tuticorin [(2010) 253 ELT 153 (Chennai)], the Tribunal decided the matter on its own merits, based 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 of the same Tribunal on the basis of facts placed before them, there is no conflict of opinions and consequently, no occasion for the Tribunal to make a reference to a Larger Bench. 7. We have carefully considered the above submissions. 8. In the light of what is stated from paragraphs 1 to 6, two questions of law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 this Act . 15. After an order is passed by the Commissioner (Appeals) on an appeal filed under Section 128(1), a further appeal would lie to the Appellate Tribunal under Section 129-A. Section 129-A(1) also uses the very same three expressions, namely (i) any person aggrieved, (ii) a decision, and (iii) order. 16. Therefore, the scheme of the Act makes it clear that the provisions for a first appeal to the Commissioner (Appeals) and a further appeal to the Appellate Tribunal are intended for 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 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hold that these appeals are not maintainable. The first question of law is answered to the effect that no appeal is maintainable 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 reference made to a Larger Bench, an appeal as against an order granting a total or partial waiver or not waiving a pre-deposit condition is certainly maintainable. Therefore, we will have to go into the next question of law as to whether the Tribunal was right in granting a complete waiver or not. 20. In the common order passed by the Tribunal on 18.11.2014, the Tribunal has chosen to exercise the discretion to grant total waiver, on the ground that a prima facie case has been made out by the assessees. Paragraph 15 of the common order of the Tribunal, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion and laid 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, the order of the Tribunal under appeal is dated 18.11.2014. Had not these appeals been filed, the reference itself would have been answered one way or the other and a decision in favour of either of the parties could have been arrived at. Therefore, at this stage, we do not wish to impose a pre-deposit condition and protract the reference being answered one way or the other. Hence, these appeals are dismissed. The Tribunal is dire ..... X X X X Extracts X X X X X X X X Extracts X X X X
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