2011 (11) TMI 545 - AT - Central Excise

Waiver of pre deposit - Whether activity is amount to manufacture - making combo-pack of two toothpastes of different weight and one tooth brush. Tooth pastes were provided by Colgate Palmolive (India) Ltd. and brush was supplied by manufacturer at Daman Held that - facts and circumstances of each case govern an interim order and interim orders have no precedential value and also no two cases are equal. So also every Court has its own discretion to pass interim order depending on the facts and circumstances of the case in hand - We are of the firm belief that if we exercise power under Rule 41 of CESTAT (Procedure) Rules, 1982 it would amount to sitting over on our own judgment when the Tribunal becomes functus officio after passing an order and has no power of review - Extention of time to make pre deposit granted - Decided partly in favour of assessee.

Issues involved:
1. Recall of pre-deposit order dated 7-9-2011 by the Tribunal.
2. Exercise of power under Rule 41 of CESTAT (Procedure) Rules, 1982 to recall the order.
3. Arguments for and against recalling the order.
4. Consideration of adjournment request and medical evidence.
5. Justification for not granting adjournment.
6. Interim modality worked out by the Tribunal.
7. Discretion of the Court in passing interim orders.
8. Power of review by the Tribunal under Rule 41 of CESTAT (Procedure) Rules, 1982.
9. Extension of the date of deposit by the Tribunal.

Analysis:

1. The appellant filed a Misc. application seeking the recall of the pre-deposit order dated 7-9-2011 by the Tribunal, citing various grounds such as the inability of the Counsel to present certain material facts during the hearing and the absence of key Counsels due to unavoidable circumstances. The appellant argued for the waiver of pre-deposit of the demand during the pendency of the appeal, emphasizing the importance of considering all relevant facts before making a decision.

2. The Misc. application invoked Rule 41 of CESTAT (Procedure) Rules, 1982 to recall the order passed by the Tribunal, drawing reference to the Supreme Court decision in the case of J.K. Synthetics v. CCE. The appellant contended that similar relief had been granted to another party in a comparable case, highlighting the need for consistency in decisions to prevent prejudice.

3. The Tribunal heard arguments from both sides, with the Departmental Representative supporting the original order and emphasizing the importance of preventing miscarriage of justice. The Tribunal considered the gravity of the matter, involving a substantial duty demand and penalty, and the need to balance the interests of the Revenue with the potential hardship on the appellant.

4. Despite the appellant's request for an adjournment based on the Counsel's inability to attend the hearing, the Tribunal found no compelling reasons presented at the time of the original order to grant the adjournment. The absence of medical evidence and cogent reasons for adjournment led to the decision not to delay the proceedings, considering the significant amount involved in the case.

5. The Tribunal underscored that adjournment is not an absolute right, citing legal precedents, and highlighted the need to avoid causing prejudice to the Revenue by further delaying the proceedings. The Tribunal emphasized the importance of passing a reasoned and speaking order to justify the pre-deposit requirement, taking into account the specific circumstances of the case.

6. The Tribunal clarified that interim orders are based on the unique facts and circumstances of each case, with no precedential value, and reiterated the discretionary power of the Court to issue interim orders based on the specifics of the case at hand. The Tribunal referenced the Apex Court's decision in Empire Industries to support this approach.

7. The Tribunal expressed reluctance to exercise power under Rule 41 of CESTAT (Procedure) Rules, 1982 to review its own judgment, as the Tribunal becomes functus officio after passing an order and lacks the authority to review its decisions. Despite acknowledging the appellant's hardship, the Tribunal concluded that the Misc. application did not warrant acceptance and subsequently rejected it.

8. In response to the appellant's concern regarding the expiration of the deposit deadline and the department's coercive recovery measures, the Tribunal extended the date of deposit by an additional 4 weeks in the interest of justice, allowing the appellant more time to comply with the order. The Tribunal aimed to alleviate the appellant's hardship while maintaining the integrity of the legal process and the interests of the Revenue.

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