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2016 (11) TMI 982 - CESTAT HYDERABAD

2016 (11) TMI 982 - CESTAT HYDERABAD - TMI - Classification of imported goods - coal - classified as bituminous coal under tariff entry 2701 12 00 or as steam coal under tariff entry 2701 19 20? - Held that: - We find that the High Court decision in the case of BMM Ispat Ltd., Gandhar Oil Refinery (I) Ltd., Gupta Coal India Pvt Ltd, Finolex Industries Ltd Versus The Commissioner of Customs, Central Excise & Service Tax and Others [2015 (11) TMI 1228 - BOMBAY HIGH COURT] are squarely applicable t .....

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er 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. - Further, recently this Bench in the case of Steel Exchang .....

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Mr. Madhu Mohan Damodhar, Member (T) None for the appellant. Shri Gunaranjan, Superintendent(AR) for the respondent. [Order per: Madhu Mohan Damodhar] The appellant has filed the present stay application against the Order-in-Original No.GUN-000-COM-007-14-15-Cus dt. 21/04/2014 passed by the Commissioner of Customs, Guntur wherein the adjudicating authority has confirmed duty demand of ₹ 61 along with interest and has imposed penalty equal to duty by denying the duty exemption provided unde .....

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b-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 s .....

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in the case of MMTC Ltd. vs. CC Vii. Mumbai Tribunal stay Order No.S/284/15/CB dt. 28/04/2015 in the case of Mohit Minerals Pvt. Ltd viii. Hyderabad Tribunal (Circuit Bench) Stay Order Nos20350-20355/2015 dt. 05/02/2015 in the case of NSL Sugars Ltd. Vs. COE. ix. Hyderabad Tribunal (Circuit Bench) Stay Order No.20369/2015 cit. 04/02/2015 in the case of JSW Energy Ltd. vs. CC. 4. We find that different Benches of this Tribunal have issued orders on identical issue which however are not uniform wi .....

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follows (para 7): 7. We find that the question or the 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. 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 .....

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e 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 repo .....

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ry all over the country. We have also expressed our prima facie view in favour of the decision of the Tribunal of Chennai Bench in the case of Tamil Nadu Newsprint & Papers Ltd. (supra). Since we are referring these matters to the Hon'ble President for constitution of Larger Bench, we waive the pre-deposit of duty along with interest and penalty till disposal of the appeals. Registry is directed to place these matters before Hon'ble President for decision on the constitution of Large .....

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to make a deviation in these cases. 22. In response to the above contentions, it is argued by Mr. G. Rajagopalan, learned Additional Solicitor General that the very finding that the respondents have a prima facie case was contrary to law and that therefore, they could not have been granted a waiver. 23. The liability bf an assessee to make a deposit of the duty and interest as demanded by the proper officer, when an appeal is filed before the Commissioner (Appeals) or the Appellate Tribunal, ari .....

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arious Courts, including the Supreme Court. Since any payment demanded is contested by every assessee as causing hardship, the Courts have grappled with this question 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 orde .....

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eals 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 earliest and dispose of the appeals within a period of two months from the date of receipt of a copy o .....

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opinion of this Court, merely because the petitioner is more vigilant about its right is no reason to nonsuit the petitioner on the ground that other 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 t .....

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