TMI Blog2015 (10) TMI 1848X X X X Extracts X X X X X X X X Extracts X X X X ..... er similarly situated assessees have not thought it fit to move applications for modification of the order of pre-deposit. When the petitioner has moved an application for modification before the Tribunal and has made out a case of changed circumstances and there is a convention to grant complete waiver of pre-deposit when the matter is referred to the Larger Bench, there was no reason for the Tribunal not to grant similar benefit to the petitioner, that too, without expressing any reason as to why such benefit was not required to be granted. Under the circumstances, the impugned order passed by the Tribunal dismissing the stay application filed by the petitioner as well as the appeal on the ground of non-compliance of the order of pre-deposit cannot be sustained. - Ordinarily, while setting aside the order passed by the Tribunal, this court would remand the matter to the Tribunal for deciding the matter afresh, however, considering the fact that in the case of similarly situated assessees, the Tribunal has already granted complete waiver of pre-deposit and it is a convention to grant waiver of pre-deposit in case the matter is referred to the Larger Bench, no fruitful purpose woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts to deposit 50% of the amount of customs duty confirmed by the adjudicating authority and did not find any reason to take a different view. It, accordingly, directed the petitioner to deposit 50% of the customs duty confirmed by the adjudicating authority and report compliance on 24.11.2014. Thereafter, the petitioner moved a modification application dated 26.11.2014 on the ground that in view of a difference in opinion on the classification issue of steam coal as bituminous coal, the CESTAT (Chennai Bench) had referred the matter to a larger Bench. That the Mumbai Bench of the CESTAT has extended the benefit of concessional CVD for coal imported from Indonesia as well as the benefit of limitation while ordering pre-deposit in identical matters. In view of divergent views expressed by other Benches, the petitioner prayed for modification of the order of pre-deposit by granting waiver of pre-deposit and unconditional stay against recovery of the entire customs duty, interest and penalty till the final disposal of the appeal. The said modification application came to be dismissed by the Appellate Tribunal by an order dated 1.12.2014 on the ground that it did not find any reason for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of Baron International Ltd. v. Union of India, 2004 (163) E.L.T. 150 (Bom.) as well as the decision of the Supreme Court in the case of Commissioner of Central Excise, Vadodara v. Steelco Gujarat Ltd., 2004 (163) ELT 403 (SC), has held thus: 6. Reading the aforesaid para will go to show that the Apex Court in unequivocal terms ruled that though the ground for rectification, namely, an error on the face of the record may be common to a power for review, the nature of the power to be exercised in the two cases is distinct. The power of review is not limited to rectification and is wider than the power conferred under Section 35C(2). Reading of Section 35C(2) will further show that while granting limited powers to rectify the order on the ground of mistake apparent on the face of record, one of the shades of power to review appears to have been conceded by the legislature in favour of the Tribunal so as to enable the Tribunal to rectify its mistake or error and to modify its order. Tribunal cannot review its order but can always modify. 3.2 Reliance was placed upon the decision of the Bombay High Court in the case of Sarla Performance Fibers Ltd. v. Union of In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondents vehemently opposed the petition by submitting that the petitioner never chose to challenge the first order dated 29.9.2014 passed by the Tribunal granting stay of recovery on condition of depositing 50% of the duty. It was submitted that reliance placed by the petitioner on the interim order passed in the case of another assessee is misconceived, inasmuch as, the interim order passed by the Tribunal in another matter is not binding on the Tribunal while deciding the review/modification application. According to the learned counsel, a subsequent change in law is no ground to seek a review/ modification in view of the Explanation to rule 1 of Order XLVII of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code ) which lays down that the fact that the decision on a question of law on which the judgment of the court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for review of such judgment. It was submitted that, therefore, mere reference to the Larger Bench would not be a ground for the Tribunal to review its earlier order. Referring to the modification application made by the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that as Tribunal does not have any powers of review, it was wholly justified in rejecting the application made by the petitioner. 4.2 Mr. Buch further submitted that the other assessees who had been directed to make pre-deposit have deposited the amount as per the order passed by the Tribunal. However, the petitioner has not deposited such amount and is, therefore, a defaulter who has not complied with the orders passed by the authorities. It was submitted that despite his conduct, if any discretion is exercised in favour of the petitioner, he would gain a march over other similarly situated assessees who have paid the amount of pre-deposit. It was submitted that the position would have been different if the Larger Bench had held in favour of the assessee on merits, however, as on date, except that the matter has been referred to the Larger Bench, the position is the same. It was contended that there was a conflict which is now recognized but the dispute is yet to be resolved and, therefore, qua pre-deposit it may not be said that there are any changed circumstances warranting exercise of discretion by this court. It was, accordingly, urged that the petition being devoid of m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel for the respective parties and has perused the decisions cited at the Bar. 7. The facts as noted hereinabove reveal that on the first application made by the petitioner seeking stay of the recovery under the order-in-original, the Tribunal by an order dated 29.9.2014 had directed deposit of 50% of the customs duty as confirmed by the adjudicating authority, only on the ground that in the case of similarly situated appellants such direction had been issued. The said order does not give any other reason for not granting waiver of the amount payable under the order-in-original. The petitioner was directed to report compliance of the said order to the Deputy Registrar by 24.11.2014 and the matter was to be placed before the Bench for passing appropriate orders on 1.12.2014. Before the date of placing the matter before the Bench for passing appropriate orders, on 26.11.2014, the petitioner moved an application for modification on the ground that there was a difference of opinion on the classification issue of steam coal as bituminous coal, between two Benches of CESTAT (Chennai Bench) and the Mumbai Bench of CESTAT has extended the benefit of concessional CVD for coal import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed by this court in the case of Asian Natural Resources (India) Ltd. v. Commissioner of Customs, (supra) to submit that in case of similarly situated assessees, the Tribunal had directed pre-deposit as a condition for stay of the recovery and that this court had confirmed the order passed by the Tribunal. In this regard, a perusal of the order passed by this court in Asian Natural Resources (India) Ltd. v. Commissioner of Customs, (supra) reveals that the court has categorically noted that the Tribunal has considered the submissions made by the learned counsel for the respective parties at length and has thereafter come to its conclusion. The court has further noted that the Tribunal had directed payment of only a small fraction of the amount that the appellant there was liable to pay under the order in original. Thus, it cannot be said that the petitioner herein is similarly situated to the said appellant, inasmuch as, in that case the Tribunal had not directed pre-deposit of 50% but only a fraction of the amount payable under the order in original and had also assigned reasons therefor. Under the circumstances, reliance placed upon the said decision does not come to the aid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 06, if as observed in the impugned order dated 11.1.2007, the appeal stood dismissed on 12.12.2006 for noncompliance of the directions issued vide order dated 12.10.2006, it is difficult to comprehend as to which matter was to be posted for reporting compliance on 20.12.2006. Thus, both things, viz. dismissal of the appeal ipso facto on 12.12.2006 for non-compliance of the order dated 12.10.2006 and posting of the matter for reporting compliance on 20.12.2006 cannot co-exist together. Besides, the petitioner herein, in the light of the fact that the decision on which the Tribunal had placed reliance for the purpose of denying full waiver of the predeposit had been referred to the Larger Bench had moved the application much before the date of reporting compliance of the earlier order. This was certainly a change in circumstances which at least would require the Tribunal to re-consider its earlier decision one way or the other, considering the fact that the Tribunal itself had not accepted the decision rendered in the case of Favourite Food Products v. CCE (supra) and had referred the same to the Larger Bench. In the circumstances, the Tribunal could not have dismissed the plea of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g that since the conflict has been referred to the Larger Bench, waiver has been granted till the disposal of the appeal and stay has been granted by the Larger Bench of the Tribunal. The court noted that the Bench is also following the same view that when the matter is referred to the Larger Bench as a convention waiver of pre-deposit is granted. The Bench, accordingly, did not find any reason to deviate from such a view and allowed the application for waiver of pre-deposit and recovery thereof. Thus, from a conspectus of the above decisions of the Tribunal, it is evident that there is a convention that in case where an issue is referred to the Larger Bench as a matter of course, waiver of pre-deposit is granted. In the present case, the petitioner moved the modification application seeking complete waiver of pre-deposit on the ground that the matter had been referred to the Larger Bench of the Tribunal. Prior thereto, the Tribunal in the case of similarly situated assessee, namely, M/s. Rainbow Papers Pvt. Ltd. had by an order dated 8.12.2014, waived pre-deposit in view of the fact that the Chennai Bench of the Tribunal has referred the matter to the Larger Bench. Thus, despite t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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