2013 (11) TMI 28 - AT - Central Excise

Modification of Stay Order Waiver of Pre-deposit Held that - If there is no change in circumstances, modification application should not be entertained Following Baron International Ltd. Vs Union of India 2003 (9) TMI 97 - HIGH COURT OF JUDICATURE AT BOMBAY - Judicial discipline requires that the Tribunal follow a consistent policy and if there is contrary decision of another Bench it has to be either followed or referred to Larger Bench - At the time of consideration of stay application, if there is a favourable decision in the case of the appellant, the same will have to be considered and a view has to be taken that appellant has made out a prima facie case - In this case, if the decision of the Tribunal were published/brought to our notice, then the decision would have been different, since a view would have been taken that appellant has made out a prima facie case that even subsequent reversal would be sufficient. After coming to know about the decision of the Tribunal, the appellants have reversed the proportionate credit with interest and according to the learned counsel, they have addressed the Commissioner to intimate the correctness or otherwise of the amount and if there is any differential amount, they have assured that they will pay the amount - the appellants have fulfilled the requirement as per the decision of the Tribunal in Bombay Bench - Therefore, the appellant has made out a prima facie case for waiver - the appellant has also made out a case for modification of stay order passed by this Bench - the requirement of pre-deposit waived and modification of the stay order allowed and stay against recovery of the dues granted during the pendency of the appeal Stay granted.

Summary

Issues:
1. Modification of stay order based on subsequent decision of the Tribunal.
2. Permissibility of review of Tribunal's order by itself.
3. Consideration of a favorable decision in appellant's case for modification of stay order.

Analysis:
1. The appellant was directed to deposit a specific amount and report compliance by a certain date. The appellant sought modification of the stay order based on a subsequent decision of the Tribunal in a different case. The Tribunal in Mumbai held that reversal of input service credit with interest subsequently would suffice, and the obligation to pay a percentage of the value would not apply. The appellant argued that this decision was not available at the time of the original order and requested modification of the stay order.

2. The learned A.R. contended that allowing such modification would amount to reviewing the Tribunal's order by the Tribunal itself, which is generally not permitted. Reference was made to a decision of the Hon'ble High Court of Bombay for support. However, the Tribunal noted that the High Court did not entirely rule out the modification of stay orders by the Tribunal. The Tribunal emphasized the importance of a prima facie inquiry to determine if modification is warranted based on new circumstances or reasons not available when the original order was made.

3. The Tribunal considered the appellant's case for waiver and modification of the stay order in light of the subsequent decision of the Tribunal in Mumbai. It was highlighted that if a favorable decision exists at the time of considering a stay application, it should be taken into account. The appellant had reversed the credit with interest and sought confirmation from the Commissioner regarding the amount. The Tribunal concluded that the appellant had fulfilled the requirements as per the decision of the Tribunal in Mumbai, establishing a prima facie case for waiver and modification of the stay order. Consequently, the requirement of predeposit was waived, and the stay against recovery of dues was granted during the appeal's pendency.