2015 (12) TMI 166 - AT - Customs

Modification of stay order - Waiver of pre deposit - Classification of goods - Classification under CTH 27011200 or under CTH 27011920 - Bituminous coal or steam coal - Held that - as per the investigation conducted by the Customs Department, the gross calorific value was found to be exceeding 5833 Kcl/kg and the volatile matter content exceeded 15% and the goods merited classification as bituminous coal as defined in sub heading note 2 to Chapter 27. Further, this Tribunal also took into account the final order of this Tribunal in the case of Coastal Energy Pvt. Ltd., & Others vide order dated 20/06/2014 wherein it was held that the coal imported having volatile matter content exceeding 15% and gross calorific value limit exceeding 5833 cal/kg would merit classification as bituminous coal . Subsequent orders of the Tribunal either by the Madras Bench or by the Circuit Bench at Hyderabad are only interim orders, whereas the decision relied upon by this Tribunal while passing the stay order is based on a final order passed by the Bangalore Bench on the matter. It is a settled position of law that interim orders passed by the co-ordinate benches do not have any binding value. Further, interim order relied upon is subsequent to the passing of the order by this bench in the appellant s case and therefore, they cannot be said to have any precedential value. - No merit in modification application.

Summary

Issues:
Classification of imported coal - Modification of stay order - Pre-deposit amount waiver

Analysis:
The judgment involves an application for the modification of a stay order issued by the Tribunal regarding the classification of coal imported by the appellant. The original order required the appellant to make a pre-deposit of a specified amount within a given timeframe. The issue revolved around whether the imported coal should be classified as "bituminous coal" or "steam coal." The appellant sought modification based on similar cases in other benches where pre-deposit requirements were waived pending appeal. The Tribunal considered the arguments presented in the modification application, highlighting the differences between the interim orders from other benches and the final order on which the original stay order was based.

The Tribunal noted that the investigation by the Customs Department found the characteristics of the imported coal to align with the definition of "bituminous coal." Previous decisions, including one by the Bangalore Bench, supported this classification based on specific criteria such as gross calorific value and volatile matter content. The Tribunal emphasized that interim orders from other benches do not hold binding value and cannot be considered as precedents, especially when they were issued after the initial stay order in the present case. The Tribunal concluded that modifying the original order based on subsequent interim orders would amount to a review, which is impermissible.

Ultimately, the Tribunal rejected the modification application, stating that there was no merit in altering the pre-deposit requirement. However, in the interest of justice, the appellant was granted two weeks to comply with the pre-deposit order, with a deadline set for reporting compliance. The Tribunal's decision was based on the principle that modifying an order based on subsequent developments would constitute a review, which is not allowed. The appellant was given a reasonable timeframe to meet the pre-deposit obligation, ensuring compliance with the original order while considering the circumstances presented in the modification application.