2015 (8) TMI 731 - HC - Customs

Waiver of Pre-Deposit Appeal against Reference Adjudicating authority passed orders imposing duty for importing bituminous coal in name of steam coal While adjudicating appeal against said order tribunal referred three issues for consideration of Larger Bench under section 130A and granted complete waiver of pre-deposit condition, till disposal of appeals Whether impugned order of tribunal was justified Held that - it was clear from scheme of Act that unless person was aggrieved by order of Tribunal, appeal cannot be maintained Reference made by one Bench of Tribunal to Larger Bench, on ground that two Benches of coordinate jurisdiction had come to different conclusions on same issue, was not decision, on which one or other party can be stated to be aggrieved While appeal was not maintainable against reference made to Larger Bench, appeal as against order granting total or partial waiver of pre-deposit condition was maintainable If Appellate Authority was of opinion that deposit of duty and interest demanded or penalty levied would cause undue hardship to such person, such deposit can be waived off Since any payment demanded was contested by every assesse as causing hardship, Courts have laid down certain parameters Tribunal proceeded to follow its own precedents, where, whenever reference was made to Larger Bench, they have granted total waiver Therefore, exercise of discretion by Tribunal need not be interfered with Decided in favour of Assesse.

Summary

Issues Involved:
1. Maintainability of an appeal under Section 130A of the Customs Act, 1962 against a reference made by CESTAT to a Larger Bench.
2. Justification of the Tribunal in granting a total waiver of the pre-deposit condition.

Issue-wise Detailed Analysis:

1. Maintainability of an Appeal under Section 130A:

At the threshold, the court examined whether the appeals under Section 130A of the Customs Act, 1962 were maintainable against a reference made by CESTAT to a Larger Bench. The court noted that an order of reference is not elevated to the status of a decision, which would enable one of the parties to file a statutory appeal or a writ petition against such a reference. The expression "order" is not defined in the Customs Act, 1962, but it is generally understood to mean a decision. The scheme of the Act provides a four-tier mechanism for adjudication, starting with an order of adjudication by the competent authority under Section 122, followed by appeals under Sections 128 and 129A, and further appeals under Sections 130 and 130E. The court concluded that a reference made by one Bench of a Tribunal to a Larger Bench is not a decision on which a party can be aggrieved. Therefore, the court held that these appeals were not maintainable as against a mere reference of certain issues by a Bench of the Customs, Excise and Service Tax Appellate Tribunal to a Larger Bench. The first question of law was answered to the effect that no appeal is maintainable against a mere reference to a Larger Bench.

2. Justification of Total Waiver of Pre-deposit Condition:

While the appeals were not maintainable against the reference to a Larger Bench, the court considered the maintainability of the appeals against the Tribunal's order granting a complete waiver of the pre-deposit condition. The Tribunal had exercised its discretion to grant a total waiver on the ground that a prima facie case had been made out by the assessees. The court noted that the liability of an assessee to make a deposit of duty and interest arises under Section 129E, which allows the Commissioner (Appeals) and the Appellate Tribunal to dispense with such deposits if it would cause undue hardship. The Tribunal had followed its precedent of granting total waivers in cases where a reference was made to a Larger Bench. The court found no reason to interfere with the Tribunal's exercise of discretion and upheld the total waiver of the pre-deposit condition. The second question of law was answered in favor of the assessees.

Conclusion:

The appeals were dismissed as not maintainable concerning the reference to a Larger Bench. However, the court upheld the Tribunal's order granting a complete waiver of the pre-deposit condition. The Tribunal was directed to constitute a Larger Bench and dispose of the appeals within two months. No costs were imposed, and connected miscellaneous petitions were closed.