TMI Blog2016 (11) TMI 218X X X X Extracts X X X X X X X X Extracts X X X X ..... ger Bench, following their earlier Interim Order No.385 to 505 dt. 07/09/2015. Thus, no new facts have emerged to deviate from the earlier view taken by us in Century Textiles case. Full waiver of pre-deposit granted. - Appeal No. C/21558/2014 - Order No. M/30153 to 30177/2016 - Dated:- 24-8-2016 - Ms. Sulekha Beevi, C.S., Member(Judicial) and Mr. Madhu Mohan Damodhar, Member(Technical) Shri Karan Talwar, Advocate for appellants at Sl.No.3,5,7,9,10,19,20 23. Shri Y. Sreenivasa Reddy, Advocate for appellants at Sl.No.1 2. Shri V.J. Sankaram, Advocate for appellants at Sl.No.6 11. Shri T. Jagapathi Rao, Advocate for appellants at sl.No.8 17. Shri B.N. Gururaj, Advocate for appellant at Sl.No.12. Shri Gopal Mundra, Advocate for appellant at Sl.No.14. Shri M.S. Nagaraja, Advocate for appellant at Sl.No.15. Shri Karthik Kurmy and Shri S.B. Sharma, Advocates for appellant at Sl.No.16. Shri Rubeen Jairam, Advocate for appellant at Sl.No.24. None for appellants at Sl.No.4, 13, 18, 21 22. Shri PRV Ramanan, Special Counsel for the respondents at Sl.No.3, 5, 8, 12, Shri S. C. Bose, Jt. Commissioner(AR) for the respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4/- 8. C/21849/2014 Parasakti Cement Industries Ltd. Rs.7,02,97,163/- Rs.1,40,58,451/- 9. C/21863/2014 Ambuja Cement Ltd. Rs.3,36,61,020/- NIL 10. C/21863/2014 Ambuja Cement Ltd. Rs.3,98,17,884/- Rs.36,47,504/- 11. C/21985/2014 Madhucom Sugar Power Industries Ltd. Rs.66,21,926/- NIL 12. C/22059/2014 Karnataka Power Corporation Ltd. Rs.56,07,99,393/- NIL 13. C/22136/2014 Vaswani Industries Ltd. Rs.69,02,704/- NIL 14. C/22317/2014 Sesa Sterlite Ltd. Rs.7,36,12,989/- Rs.2,52,78,023/- 15. C/22421/2014 JSW Cement Ltd. Rs.10,73,90,238/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the above two parameters the same is Bituminous coal which would fall under the Customs Tariff Heading 2701 12 00. 5. The submissions made by counsels/consultants appearing for appellants(Shi. Karan Talwar, Sh. Y. Sreenivasa Reddy, , Sh. T. Jagpathi Rao, Sh. V. J. Sankaram , Sh. B. N. Gururaj, Sh. Gopal Mundra, Sh. M.S. Nagaraja, Sh. Kartik Kurmy, Sh. S.B. Sharma and Sh. Rubeen Jairam) being more or less on the same lines, their arguments are briefly summarized as below:- i) As there is no statutory definition for steam coal , the same should be interpreted in the commercial sense or in common trade parlance. Classification of steam coal is use-based since there is no separate head for steam coal in the ASTM Scheme, which classifies coal into various categories based on physical characteristics and chemical composition. Hence the Appellants have rightly classified the imported goods as steam coal under CTH 27011920. ii) Steam Coal is a more specific heading as compared to Bituminous Coal as the latter may be coking coal or steam coal based on its quality and the use to which it is put to. iii) The intention of the Government was to grant exemption to all impor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dismissed the appeals filed by the Commissioner as reported in 2015 (325) E.L.T. 644 (Mad.). In Para 24 of the decision, the Honourable High Court observed that 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. Accordingly, the appeals filed by the Commissioner were dismissed. The Honourable High Court, however, directed the Tribunal to constitute a Larger Bench at the earliest and dispose of the appeals within a period of two months from the date of receipt of a copy of the Order. Further developments in the Tribunal are however, not known. x) On an identical issue, this Honourable Tribunal vide Misc. Order No. M/30059/2016 dated 16.05.2016 in the case of Century Textiles Industries Ltd. V/s. CC, Visakhapatnam granted unconditional stay. xi) Further, in the following cases, full stay has been granted by various High Courts and Tribunals since the issue pending before Larger Bench of the Tribunal. BMM Ispat Ltd. V/s. CCE - 2016 (331) ELT 363 (Bom.) CCE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. c) The Honourable Tribunal in the impugned stay order had relied on the decisions of Asian Natural Resources (India) Ltd V/s. Commissioner of Customs reported at 2014-TIOL-2204-HC-AHM-CUS, Millenium Steel (I) Private Ltd. V/s. Commissioner of Central Excise, Goa reported at 2015-TIOL-870-CESTAT-MUM and Gupta Coal India Private Ltd Finolex Industries Limited reported at 2015-TIOL-748-CESTAT-MUM.and directed the Appellant to deposit 50% of the amount along with proportionate interest. It is submitted that on appeal filed by the assessee against the above order passed by the in the case of Gupta Coal India Pvt. Ltd. (Custom Appeal No.78 of 2015); and Finolex Industries Limited (Custom Appeal No. 81 of 2015), the Honourable Mumbai High Court in the case of BMM Ispat Ltd., V/s. CCE 2016 (331) ELT 363 (Bom.), by a common order dated 16.11.2015 considered the issue and granted unconditional waiver of pre-deposit holding that the question or issue was arguable; now that there are rival contentions and equally differing views of the Benches of the Tribunal, then, all the more this was not a case for imposition of any condition of pre-deposit; that waiver application should have b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng), in which the issue was decided in favour of the Revenue is fully applicable to the facts of the appeals. Although the said decision has been appealed and admitted by the Hon ble Supreme court, no stay has been granted against operation of the order and therefore the ratio of the said decision is very much applicable to these appeals. ii. The decision of Chennai Tribunal in Tamil Nadu Generation Distribution case 2015(316) ELT 305 (Tri- Chennai) is decided on different parameters and hence there can be no conflict between this decision and that of CESTAT Bangalore Bench in Coastal Energy case (supra). That consequently there was no necessity for CESTAT, Chennai to have referred the issue to Larger Bench. iii) The CESTAT Mumbai Bench has, in respect of M/s. Mohit Minerals, M/s.Bhatia Global, M/s.Asian Natural, M/s. Gupta Goal, M/s. Phoenix Comtrade and M/s. MMTC, noted that it was the convention observed by CESTAT to waive pre-deposit in cases where reference was made to LB. The High Courts of Gujarat and Mumbai have also been led to believe the said observation. This is not true inasmuch as in respect of M/s. BMM Ispat Ltd., M/s. Ultratech Cements, M/s. Jai Prakash Asso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sakhapatnam [2015 (315) ELT 376 (376)], a copy of which is annexed. Observations of the Court at Paras 5 to 7 are relevant in the context of the present Stay applications. Holding that the said case was in the category of an arguable one of the Court has held that condition of pre-deposit of 50% specified by the commissioner (Appeals) was not unjustified. For the same category of cases the Mumbai High Court has taken a contrary view (vide Para 4 (vii) (b) above). That the judgement of the Honourable AP High Court, being the jurisdictional High Court, has more precedential value and binding effect than that of the judgement of Mumbai High Court. 9. In respect of the remaining applications/appeals, the Department represented by learned ARs Shri S. C. Bose, Shri Nagaraj Naik, Shri Arun Kumar, Shri P.S. Reddy and Shri Guna Ranjan adopted the aforesaid arguments made by Special Counsel Shri PRV Ramanan. 10. We have given our anxious consideration to the detailed submissions made by both sides. 11. The very same issue has been dealt by this Bench in the case of M/s Century Textiles Ltd (Appeal No. C/21746/2014-Stay Order M/30059/ 2016 dated 16.05.2016 , relevant portion of which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterest of justice will be served if each of these appeals are allowed. The impugned orders of the Tribunal are quashed and set aside. There will be an unconditional waiver of the requirement of pre-deposit. The condition in that behalf need not be adhered to. There will be an unconditional stay of the recovery of tax pending appeals. However, we clarify that we have not expressed any opinion on the afore referred question or the controversy arising on account of differing views of the Benches of the Tribunal. All contentions in that behalf are kept open. It would be open for the Revenue to seek a modification of this order in the event the Tribunal s Zonal Bench is unable to take up the appeals for hearing and final disposal expeditiously. 7. The Hon ble High Court of Madras, in the case of CC, Trichy Vs. Chettinad Cement Corporation Ltd, reported in 2015(325) ELT 644 (Mad.) has ordered as follows (paras 20 to 24): 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nerally 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 directed to constitute a Larger Bench at the earlies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioners to deposit 50% of the amount of customs duty which had been confirmed by the adjudicating authority is hereby modified by granting waiver of pre-deposit of the duty along with interest and penalties till the disposal of the appeals. Rule is made absolute accordingly in each of the petitions with no order as to costs. 9............ 10. We find that the aforesaid High Court decisions are squarely applicable to the present petition. Consequently, we waive pre- deposit and grant stay as prayed for in the case appealed before us, till further orders. 12. The Special Counsel for Department has argued that the decisions of Gujarat High Court in Colourtex Industries case (2015-TIOL-2466-HC-AHM-Cus) and of Bombay High Court in BMM Ispat Ltd case [2016(331) ELT 363 (Bom)] have waived pre-deposit by following convention and practice that whenever an issue is referred to Larger Bench , in similar matter pre-deposit is waived. That there is no such convention in existence. Just because issue is referred to Larger Bench it is not necessary that pre-deposit has to be waived. The reference of an issue to Larger Bench does not stand on higher footing than an appeal pending befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quired of us to follow. This is what the doctrine of stare decisis enjoins us to do. 14.1. Special Counsel has also argued that if the nature of a case is an arguable one, as in the instant case where the Bangalore Bench has held the issue in favour of the Revenue, stay cannot be granted without order of pre-deposit; In this regard he relied upon the ratio in the judgment rendered by A.P. High Court in the case of Hira Ferro Alloys case reported in 2015 (315) ELT 376 (A.P.). In the first place, we find that the said case has also made the following observations:- 6. It thus appears upon careful reading of above paragraph that if a litigant has got strong prima facie case, then the same can be treated within the fold of undue hardship. But, there are no guidelines in which cases and when undue hardship relatable to prima facie case can be perceived. According to us, it depends upon each and every individual case. Without laying down any exhaustive guidelines, we think that following will be useful for adjudicating the application for waiver of full deposit by the Commissioner as well as this Court. (i) If on apparent reading of the matter, it is found that the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , will be applicable to this case. 38. In the aforementioned cases, this Court failed to take into consideration that once an appeal is filed before this Court and the same is entertained, the judgment of the High Court or the Tribunal is in jeopardy. The subject matter of the lis unless determined by the last Court, cannot be said to have attained finality. Grant of stay of operation of the judgment may not be of much relevance once this Court grants special leave and decides to hear the matter on merit. 17. In the result, the learned Special Counsel and learned ARs for Revenue have not been able to convince us that there has been a change of circumstances or new facts have emerged favouring the stand of the Department. On the other hand, we find that since our aforesaid decision of 16/05/2016 in Century Textiles case, even the coordinate Bench of the Tribunal at Ahmedabad have, vide their Interim Order No.125-140/2016 dt. 08/06/2016 referred sixteen more appeals on identical issue to the Larger Bench, following their earlier Interim Order No.385 to 505 dt. 07/09/2015. Thus, no new facts have emerged to deviate from the earlier view taken by us in Century Textiles case. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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