1987 (12) TMI 185 - AT - Central Excise

Summary

Issues:
1. Interpretation of the term "undue hardship" in Section 35F of the Central Excises and Salt Act, 1944.
2. Consideration of factors like prima facie case and balance of convenience for dispensing with deposit under Section 35F.
3. Minority view on the interpretation of "undue hardship" in Section 35F.
4. Consideration of prima facie case while deciding on dispensing with pre-deposit under Section 35F.
5. Maintainability of Reference Application against an interim order.
6. Tribunal's power to review its own acts.
7. Whether rectification or recall of an order is necessary in this case.
8. Applicability of inherent powers of the Tribunal.

Analysis:

The applicants raised questions regarding the interpretation of "undue hardship" in Section 35F of the Central Excises and Salt Act, 1944. They questioned whether undue hardship was limited to financial or immediate pecuniary hardship and whether liquidity of the firm was the sole factor in determining undue hardship. Additionally, they challenged the Tribunal's stance on factors like prima facie case and balance of convenience for dispensing with the deposit under Section 35F.

During the hearing, the applicants cited precedents to support their contentions, including decisions from the Hon'ble High Court of Delhi and the Tribunal. They argued that the Tribunal had erred in its order and requested an amendment under Section 35C(2) of the Act to rectify the mistake. However, the Bench clarified that the current proceedings were for a Reference Application under Section 35G(1) and not for rectification.

The learned Counsel emphasized the Tribunal's inherent power to review its own acts, citing legal precedents that supported this notion. They contended that even without an express statutory provision for review, the Tribunal could rectify its errors if they caused prejudice to a party. The Counsel also highlighted cases where Tribunals had the authority to recall their orders, further supporting the argument for rectification in this case.

The Tribunal deliberated on the maintainability of the Reference Application against an interim order. The S.D.R. argued that a Reference Application should be based on a final order under Section 35C, and interlocutory orders did not warrant a reference. The S.D.R. also opposed the oral prayer for rectification, suggesting that a written application under Section 35C(2) would be more appropriate.

Ultimately, the Tribunal dismissed the application, stating that the Interim Order in question did not determine the parties' rights directly and did not fall under Section 35C. The Tribunal emphasized the need to adhere to the express provisions of the Central Excise Act and Section 35F regarding pre-deposit requirements. Additionally, the Tribunal noted that the points of law raised had already been settled by court judgments and Tribunal orders cited by the applicants, further justifying the dismissal of the application.