2011 (11) TMI 317 - HC - Central Excise

Tribunal ordering for deposit while setting aside the order passed by Adjudicating Authority to seek fresh determination assessee submit that once the order of Adjudicating Authority is being set aside then no condition of pre-deposit could have been imposed by the Tribunal - Held that -Tribunal has the jurisdiction to issue directions u/s 35C as it considers appropriate in its judicial discretion. See Shiv Sewa Sadan vs CESTAT (2009 - TMI - 33202 - Punjab And Haryana High Court). The order of direction to deposit Rs.80 lacs, is a direction in exercise of the powers conferred on the Tribunal u/s 35C of the Act, and not a condition to entertain the appeal u/s 35F. Allegations against the appellant are that of clandestine removal and undervaluation of goods demand of duty of 3.65 lacs apart from penalty and interest it is held that keeping in view the extent of liability which may arise against the appellant, direction to deposit the amount of Rs.80 lacs is not disproportionate. Thus, argument of appellant regarding amount being highly excessive is not tenable. However, Rs.20 lacs deposited by appellant shall be taken into consideration for considering the total deposit of Rs.80 lacs i.e. the appellant is required to deposit an additional sum of Rs.60 lacs. Bank guarantee - Supreme Court in CCE v. Dunlop India Ltd. (1984 -TMI - 40039 - SUPREME Court) has held that the State is not run on the Bank Guarantees. Therefore, no permission is granted to appellant to furnish Bank Guarantee to the extent of Rs.60 lacs Decided partly in favor of assessee.

Summary

Issues:
1. Adverse comments against the appellant in the Tribunal's order.
2. Jurisdiction of the Tribunal to order deposit when setting aside Adjudicating Authority's order.
3. Excessive amount directed to be deposited by the appellant.
4. Adjustment of the amount already deposited by the appellant.
5. Permissibility of depositing the amount through a Bank Guarantee.
6. Consideration of Rs.20 lacs already deposited by the appellant.
7. Extension of time for deposit.

Analysis:

1. The Tribunal recorded adverse comments against the appellant, which the appellant argued should be expunged as unwarranted and untenable. The High Court held that any reservation regarding the remarks should have been raised before the Tribunal, and this Court was not the proper forum to consider expunction of remarks in appeal.

2. The Tribunal's jurisdiction to order a deposit of Rs. 80 lacs was challenged by the appellant under Section 35C of the Act. The High Court clarified that the Tribunal can issue such directions or impose conditions as it deems fit while deciding an appeal, and the jurisdiction to issue directions while remanding the matter to the Adjudicating Authority is not without jurisdiction.

3. The appellant argued that the directed amount of Rs. 80 lacs was excessive and disproportionate to the liability that may arise. The High Court disagreed, stating that the amount was to secure the interest of revenue and prevent delay tactics, considering the substantial demand and the nature of the allegations against the appellant.

4. The High Court noted that the Tribunal did not order the adjustment of Rs. 20 lacs already deposited by the appellant. Upon review, the Court directed that the amount of Rs. 20 lacs should be considered, and the appellant needed to deposit an additional sum of Rs. 60 lacs to meet the total requirement.

5. The appellant requested to deposit the amount through a Bank Guarantee, but the High Court cited a Supreme Court ruling that the state is not run on Bank Guarantees, rejecting the argument and upholding the requirement for a cash deposit.

6. Regarding the consideration of the Rs. 20 lacs already deposited, the High Court directed that this amount should be accounted for while determining the total deposit required from the appellant, resulting in a revised additional deposit of Rs. 60 lacs.

7. Lastly, the appellant sought an extension of time for the deposit. The High Court directed that if the appellant deposited the required sum of Rs. 60 lacs by the specified date, the proceedings before the Adjudicating Authority could proceed as scheduled.

In conclusion, the High Court disposed of the appeal with the specified directions and observations to address the issues raised by the appellant regarding the Tribunal's order and the deposit requirement.