TMI Blog2016 (11) TMI 982X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of any condition of pre-deposit. The waiver application should have been granted without imposing any conditions. If the Larger Bench of the Tribunal is to resolve the matter, then all the more, without expressing any opinion on the merits of the controversy, so also on the point whether mere reference to Larger Bench should necessarily result in total waiver and unconditional stay, we are of the view that interest 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 46/- towards interest during investigations. 2. The case of the Department is that sub-heading Note 2 of Chapter 27 defines bituminous coal as coal which processes volatile matter value, on DMMF basis, exceeding 14% and calorific value limit on MMMF basis, greater than 5833 kcal/kg and since the imported goods satisfy the above 2 pera meters, the same is bituminous coal which would fall under Customs tariff heading 2701 12 00. 3. The appellant however points out that on the identical issue, in the following cases, full stay has been granted by various High Courts and Tribunals since the issue is pending before Larger Bench of the Tribunal: i. BMIVI [spat Ltd. vs. CCE [2016(331) ELT 363 (Bom)] ii. CCE Vs. Chettinad Cement Corp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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. The waiver application should have been granted without imposing any conditions. If the Larger Bench of the Tribunal is to resolve the matter, then all the more, without expressing any opinion on the merits of the controversy, so also on the point whether mere reference to Larger Bench should necessarily result in total waiver and unconditional stay, we are of the view that interest 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and penalty till disposal of the appeals. Registry is directed to place these matters before Hon'ble President for decision on the constitution of Larger Bench. 21. Our attention is invited to a series of orders passed by several Benches of CESTAT, granting a total waiver of the pre-deposit condition, in cases where a reference is made to Larger Benches. On the basis of those orders, it is contended by the learned counsel 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner as well as the appeal on the ground of non-compliance of the order of pre-deposit cannot be sustained. 15. 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 would be served in remanding the matters to the Tribunal. 16. For the foregoing reasons, the petitions succeed and are accordingly, allowed. The impugned orders dated 15-1-2015 passed by the Tribunal are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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