2015 (1) TMI 754 - HC - Central Excise

Cenvat Credit - Extended period of limitation - Held that - In the matter of this nature, it is not expected that the Tribunal takes an extreme view and expresses virtually a final opinion on the merit of the controversy. These are matters where litigants are not expected to be non-suited at interlocutory stage. The remedy of appeal becomes meaningless and the legal provision nugatory by such extreme directions. That would mean that the exercise of discretion in the given case is arbitrary and capricious as well. Bearing in mind this salutary principle in the present case the Tribunal should have passed an order which protects the interest not only of the Revenue but prevents the appellant before us in not being non-suited completely. - the appellant has not raised the issue of financial hardship. - Decided conditionally in favour of assessee.

Summary

Issues:
1. Interpretation of difference of opinion between Member (Judicial) and Member (Technical) in an appellate jurisdiction.
2. Exercise of discretion by the Tribunal at the interlocutory stage.
3. Balancing the rights and contentions of the parties to prevent non-suiting.
4. Application of the principle of interest of justice in disposing of the appeal.

Analysis:
1. The judgment involves a dispute regarding the difference of opinion between Member (Judicial) and Member (Technical) in an appellate jurisdiction. The appellant argued that a substantial question of law arises when such a difference exists, emphasizing the need to strike a balance to prevent rendering the remedy of appeal illusory. The respondent contended that the discretionary exercise by the Revenue should not be interfered with merely due to a difference of opinion at the interim relief stage.

2. The High Court, after hearing both parties, found that a reasonable exercise of balancing the rights and contentions of the parties should have been conducted by the Tribunal. Extreme views leading to virtually final opinions on the merits of the controversy at an interlocutory stage were deemed inappropriate. The court highlighted that litigants should not be non-suited prematurely, making the remedy of appeal meaningless. Arbitrary and capricious exercise of discretion was criticized, emphasizing the need to protect the interests of both parties.

3. In light of the principles of justice and fairness, the High Court passed an order requiring the appellant to deposit a specified sum in cash with the Revenue and furnish a bank guarantee for the remaining amount, allowing a stay in the proceedings. The court granted a reasonable time for compliance and directed the Tribunal to decide the appeal without being influenced by any tentative findings. The judgment aimed to ensure that the interests of both parties were safeguarded and that the appeal process was conducted fairly and expeditiously.

4. Notably, the High Court considered the absence of the issue of financial hardship raised by the appellant in passing the order. By applying the principle of interest of justice and balancing the rights of the parties, the court sought to address the dispute arising from the difference of opinion between the judicial and technical members, ensuring a fair and just resolution of the appeal.