2001 (11) TMI 340 - AT - Central Excise

Summary

Issues:
1. Waiver of pre-deposit of penalty amount under Rule 173Q of the Central Excise Rules, 1944.
2. Maintainability of the appeal against the interim order passed by the Commissioner (Appeals) under Section 35F of the Central Excise Act.
3. Consideration of conflicting views on appealability of orders passed under Section 35F of the Act.
4. Direction to constitute a Larger Bench to address the issue of appealability of orders passed under Section 35F.
5. Invocation of Rule 41 of the CEGAT (Procedure) Rules, 1982 for stay of recovery of penalty amount pending the Larger Bench's decision.

Analysis:

1. The applicants sought waiver of pre-deposit of a penalty of Rs. 6 lakhs imposed under Rule 173Q of the Central Excise Rules, 1944. The appeal was made to the Commissioner (Appeals) who directed the deposit of the penalty amount, leading to a subsequent writ petition to the High Court. The High Court directed the applicants to approach the appellate forum and obtain necessary orders by filing an appeal. The present application arose from the High Court's order, with the main ground being the alleged failure of the lower appellate authority to consider the amount already deposited by the assessee and other financial hardships due to industry recession.

2. The Tribunal delved into the maintainability of the appeal against the interim order passed by the Commissioner (Appeals) under Section 35F of the Central Excise Act. Reference was made to conflicting views on appealability, citing a decision by a Single Judge of the Calcutta High Court and a ruling by the Division Bench of the Rajasthan High Court. The Tribunal also mentioned a Supreme Court decision in Jain Engineering Company v. Collector of Customs, Bombay, upholding the Tribunal's view on the appeal's grounds.

3. Considering the conflicting views on appealability, the Tribunal decided to refer the issue to a Larger Bench for resolution. Acknowledging that the final settlement might take time, the Tribunal invoked Rule 41 of the CEGAT (Procedure) Rules, 1982 to stay the recovery of the penalty amount until the Larger Bench addressed the appealability issue. This decision aimed to prevent undue hardships to the applicants during the pending resolution of the issue by the Larger Bench.