2013 (3) TMI 755 - AT - Customs

Summary

Issues involved: Delay in disposal of stay application causing prejudice to Revenue, lack of consideration of submissions by learned Commissioner (Appeals), power of Commissioner (Appeals) to modify orders.

Delay in disposal of stay application causing prejudice to Revenue: The Tribunal acknowledged the Revenue's objection regarding the delay in disposing of the stay application, which prevented Revenue from collecting its dues. The Tribunal noted that the application had not reached a conclusion for over a year, causing prejudice to the Revenue's interests.

Lack of consideration of submissions by learned Commissioner (Appeals): The appellant's counsel raised a grievance that the written submissions filed were not considered by the learned authority. It was argued that if the submissions were taken into account, the appellant would have a fair chance to succeed without the need for any pre-deposit. The order passed by the authority on the modification application was deemed not entertainable without considering the submissions.

Power of Commissioner (Appeals) to modify orders: The Tribunal agreed with the learned Commissioner (Appeals) that he did not have the power to modify his order, citing previous cases such as Garg Ispat where this issue was elaborately discussed. The Tribunal upheld the proposition of law that the Commissioner (Appeals) lacked the authority to modify his order, as established in the Third Member reference by the Tribunal.

Judgment: The Tribunal set aside the previous orders related to the stay application and directed the appellant to make a fresh application before the learned Commissioner (Appeals) within 15 days. The Commissioner (Appeals) was instructed to fix an appropriate date for the hearing of the stay application upon receiving the appellant's application. The appellant was required to appear on the fixed date without seeking adjournment and explain its case for the Commissioner (Appeals) to reconsider the stay application on its own merits. Additionally, the Commissioner (Appeals) was directed to issue a notice within 15 days to carry out the Tribunal's directions, thereby disposing of the stay application and remanding the appeal to the Commissioner (Appeals).