2006 (1) TMI 289 - AT - Customs

Summary

Issues:
1. Interpretation of liability of transferee regarding Modvat credit availed by the original license holder/manufacturer.
2. Applicability of the decision in Hico Enterprises v. C.C., Mumbai.
3. Dispute regarding the requirement of pre-deposit.
4. Authority to constitute a Bench for final hearing.

Analysis:
1. The judgment addresses the issue of liability of the transferee concerning Modvat credit availed by the original license holder/manufacturer. The appellant argued based on the decision in Hico Enterprises v. C.C., Mumbai, claiming that the transferee is not liable to pay duty even if Modvat credit was availed. The respondent, on the other hand, cited contrary decisions from the Orissa High Court and Bombay High Court. The Tribunal decided to waive the pre-deposit requirement and scheduled the appeal for final hearing before an independent Bench to avoid any conflict with the Hico case.

2. The judgment delves into the applicability of the decision in Hico Enterprises v. C.C., Mumbai. The Member (Judicial) disagreed with the order prepared by the Member (Technical) and passed an order for a full waiver and stay of recovery based on the settled position by the Larger Bench in the Hico case. However, the Member (Judicial) disagreed with the direction to list the appeal before an independent Bench, asserting that the Registry cannot constitute a Bench, and such directions would infringe on the power of the Hon'ble President to constitute a Bench.

3. The dispute regarding the requirement of pre-deposit was resolved by allowing the stay application as per the decisions of both the Hon'ble Member (Technical) and the Hon'ble Member (Judicial). The judgment clarified that there was no dispute concerning the liability of the transferee when Modvat credit is availed by the original license holder, leading to a full waiver and stay of recovery of the amounts involved in the appeal.

4. Lastly, the judgment addresses the authority to constitute a Bench for final hearing. It was decided that the case would be listed for regular hearing before a Bench constituted by the Hon'ble President, emphasizing the President's power to order the transfer of cases between Benches. The judgment highlighted the lack of basis for the presumption of embarrassment felt by the members of the Larger Bench in the Hico case.