2011 (10) TMI 141 - AT - Central Excise

Miscellaneous application for early hearing of the appeal and by mistake the same has been numbered as stay petition - Commissioner (Appeals) has passed an order directing the adjudicating authority to allow the provisional assessment after execution of bond and bank guarantee,also noticed that provisional assessments were to be finalised as per the writ petition filed before the Hon ble Delhi High Court - Held that matter needs to be finalised by the adjudicating authority, after considering the directions given by the Hon ble High Court in their judgment - appeal is allowed by way of remanding the matter to the adjudicating authority, who shall decide the matter afresh, in accordance with law

Summary

Issues:
1. Misclassification of the application as a stay petition instead of an early hearing application.
2. Consideration of the appeal for out-of-turn hearing.
3. Provisional assessment directive by the Commissioner (Appeals) and the writ petition filed before the Delhi High Court.
4. Impact of the Delhi High Court judgment on the appeal.

Analysis:
The judgment by the Appellate Tribunal CESTAT, Ahmedabad, addressed the issue of a misclassified application, which was filed for early hearing but mistakenly numbered as a stay petition. The Tribunal acknowledged the error and allowed the out-of-turn hearing of the appeal due to the narrow compass of the issue at hand. This decision was based on the appellant's case for expedited consideration, leading to the disposal of the appeal itself.

Regarding the provisional assessment directive, the Tribunal noted that the Commissioner (Appeals) had instructed the adjudicating authority to permit provisional assessment post the execution of a bond and bank guarantee as per the CBE&C Manual of Supplementary Instructions. Additionally, it was highlighted that the finalization of provisional assessments was subject to a writ petition before the Delhi High Court. The appellant presented the judgment from the Delhi High Court in a related writ petition, which influenced the Tribunal's decision.

The Tribunal, after reviewing the Delhi High Court's judgment in writ petition (Civil) No. 5454/2010, concluded that the adjudicating authority needed to reevaluate the matter in light of the directions provided by the High Court. Consequently, the appeal was allowed, and the case was remanded to the adjudicating authority for a fresh decision in compliance with the law. This remand was deemed necessary to ensure that the adjudication aligns with the directives outlined in the Delhi High Court's judgment, emphasizing the importance of legal adherence and due process in the resolution of the matter.

In conclusion, the judgment underscored the significance of following proper procedures and legal instructions, as evidenced by the correction of the misclassified application, the consideration for out-of-turn hearing, and the requirement for the adjudicating authority to adhere to the directives of the Delhi High Court in finalizing the matter.