1994 (3) TMI 186 - AT - Central Excise

Issues:
1. Stay of operation of the order of the Collector (Appeals)
2. Stay of recovery of Rs. 15,30,416 directed to be returned by the applicants to the Department
3. Determination of whether the refund amount should be credited to the Fund or paid to the applicants
4. Jurisdiction of the lower appellate authority
5. Prima facie case for stay of recovery
6. Difference of opinion between the Judicial Member and the Vice President
7. Application for waiver of pre-deposit

Analysis:

1. Stay of Operation of the Order of the Collector (Appeals):
The application was filed for stay of the order of the Collector (Appeals) or for stay of recovery of the amount directed to be returned by the applicants to the Department. The applicants manufactured textile yarn and the classification of the yarn was in dispute. The applicants had paid the duty amount under protest during the pendency of a writ petition challenging the reclassification. The writ petition was disposed of with directions for classification determination by the Excise authorities. The Assistant Collector held the yarn fell under a different classification, which was set aside by the lower appellate authority. The Department filed an appeal against this decision, and the claim for duty paid was sanctioned by the Assistant Collector. However, the Collector (Appeals) set aside the refund and directed the applicants to return the amount, leading to the application for stay.

2. Determination of Refund Amount:
The applicants argued that the issue on merits was concluded in their favor, and the Assistant Collector had confirmed that they had not passed on the duty incidence to their buyers. The lower appellate authority was accused of exceeding jurisdiction in their order. The Department contended that the classification issue was pending in the Supreme Court and the Tribunal, and defended the reasoning in the impugned order. The Tribunal found that a prima facie case on merits was not established due to the pending issues, and rejected the application for stay, granting time for deposit of the amount.

3. Jurisdiction of the Lower Appellate Authority:
The lower appellate authority was criticized for allegedly exceeding jurisdiction by going beyond the scope of the appeal before him. The issue arose from an order passed by the Collector of Central Excise under Section 35E(2) of the CESA, 1944. The Tribunal noted the contentious nature of the matter and the pending issues, deciding not to interfere at that stage.

4. Prima Facie Case for Stay of Recovery:
The Vice President and the Judicial Member had differing opinions on the necessity of pre-deposit of the duty amount. While the Judicial Member rejected the application for stay, the Vice President granted stay of recovery subject to certain conditions. The matter was referred to the President for a third Member's opinion.

5. Difference of Opinion and Final Order:
The third Member, Member (T), agreed with the Vice President's order, considering the classification issue and the findings of the Assistant Collector. Ultimately, the majority opinion prevailed, and no pre-deposit was required, with recovery stayed subject to the appellant providing an undertaking to the Collector.

This detailed analysis covers the key issues and the Tribunal's decision-making process in the judgment.

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