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M/s Gem Granites Versus Commissioner of Central Excise, Customs, Excise And Service Tax Appellate Tribunal

2015 (11) TMI 762 - MADRAS HIGH COURT

Validity of impuned order - Waiver of pre deposit - Held that:- Tribunal did not set aside the order of the Commissioner (Appeals) to remand the matter. The Tribunal modified the pre-deposit condition imposed by the Commissioner (Appeals) and directed the Commissioner to dispose of the appeal. The order of the CESTAT, impugned in this appeal, can be treated as an order of remand only if the stay petition has been directed to be re-heard. Since the condition imposed by the Commissioner (Appeals) .....

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not refuse to modify, after considering the merits. But, he simply refused to entertain the modification application on the ground that he had become functus officio. It was only as against this order, the appellant filed an appeal before the CESTAT. Therefore, the CESTAT was not obliged to go into this question. However, on the other question, the Tribunal took a lenient view and reduced the amount demanded by the Commissioner (Appeals) by 50%. Hence, the order of the Tribunal does not really c .....

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filed by the assessee. 2. Heard Mr.Raghavan Ramabadran, learned counsel for the appellant and Mr.A.P.Srinivas, learned Senior Panel Counsel appearing for the respondents. 3. As against the order in original bearing No.01/2012 dated 13.12.2012, passed by the Deputy Commissioner of Central Excise, demanding a duty of ₹ 519.88 lakhs under the provisions of section 72(1)(d) of the Customs Act, 1962 read with section 11A of the Central Excise Act, 1944, for the years 2000-2001 to 2005-2006, th .....

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der on the ground that when the goods are bonded, the question of payment of duty as a condition for the grant of stay would not arise under section 129E of the Customs Act, 1962. 4. The petition for modification was dismissed by the Commissioner (Appeals) by an order dated 5.6.2013 on the ground that the failure to comply with the conditional order would result in the automatic dismissal of the stay petition and that the Commissioner (Appeals) would become functus officio thereafter. 5. Aggriev .....

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hese further appeals. 6. It is contended by Mr.Raghavan Ramabadran, learned counsel for the assessee (1) that while setting aside the order of the lower authority, the higher authority has no power to impose a condition and (b) this is a case where no pre-deposit condition can be levied at all in terms of section 129E. 7. On the first contention, we do not think that the learned counsel is correct on facts. The Tribunal did not set aside the order of the Commissioner (Appeals) to remand the matt .....

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merits. Therefore, the first contention lacks merit. Hence, it is rejected. 8. Insofar as the second contention is concerned, we do not think that we would go into it. The original order of the Commissioner (Appeals) imposing a condition for the deposit of 50% of the demand was dated 8.5.2013. As against the said order, the appellant did not file an appeal before the CESTAT. Instead, the appellant went before the very same Commissioner (Appeals) and sought a modification. The Commissioner (Appe .....

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