POWER TO IMPOSE CONDITIONS WHILE REMANDING THE MATTER:

[Mr. M. GOVINDARAJAN]

In 'Shiva Sewa Sadan V. CESTAT, New Delhi' - 2010 (254) ELT 294 (P&H) on the request of the appellant the Tribunal has referred the matter back to the original authority because no proper opportunity of hearing was granted, on certain conditions and directed the appellant to deposit a sum of Rs.10 lakhs within 3 weeks from the date of order and to report compliance before the Commissioner. The appellant was also required to file reply within four weeks from the date of order to the Commissioner. The High Court held that the amount of Rs.10 lakhs required by the Tribunal to be deposited by the appellant cannot be considered as pre-deposit for hearing of the matter afresh by the original authority. There is no such bar under Sec. 35(c) while referring the case back to the original authority, the Tribunal cannot impose such conditions. There is, thus, no merit in the appeal nor it involves any question of law.

DISCRETIONARY POWERS:

Rule 41 of CESTAT (Procedure) Rules provides that the Tribunal may make such orders or give such directions as may be necessary or expedient to give effect or in relation to the orders or to prevent abuse of its procedure or to secure the ends of justice.

The Tribunal in 'Munch Food Productions Ltd., V. Commissioner of Central Excise, Delhi - 1' - 2010 (256) ELT 252 (Tri. Del) held that this is a discretionary provision which definitely requires to be invoked when there is willful disobedience by the authorities below. In this case the Tribunal vide order dated 27.03.2002 remanded the matter to the Adjudicating Authority. The matter was in process for de novo adjudication before the original authority. Meanwhile the applicant filed Misc. Application for implementation of the order of the Tribunal dated 27.03.2002. When the application came before Tribunal on 07.09.2007 by that time the Adjudicating Authority has passed a detailed order dated 30.07.2007 which was brought to the notice of the Tribunal. The Tribunal dismissed the application. The applicant had, for whatever reason, not chosen to file appeal before the Commissioner (Appeals). After a lapse of 2 years the applicant had chosen to file the Misc. Application stating that the Original Authority has passed the de novo contrary to the terms of the order of the Tribunal dated 27.03.2004.
The Tribunal held that there was no justification to invoke discretionary powers vested under Rule 41 of CESTAT (Procedure) Rules.

REVIEW POWER:

In 'International Air Charter Operations V. Commissioner of Customs, New Delhi' - 2010 (256) ELT 123 (Tri. Del) - In absence of any finding by adjudication authority coming to the rescue of appellant stay order passed earlier need not be varied. We are therefore compelled to dismiss the application. If we entertain the application, which we do not propose to do we shall unsettle the settled position of law that the Tribunal has no power of review. We do not consider that review shall be entertained in disguise in absence of statutory mandate. We also make it clear that express grant to statutory power does not take into its fold the power of review which is not inherent with the powers of the Tribunal.

PRE DEPOSIT AND DISPOSAL OF APPEAL:

In 'Uniworth Textiles Limited V. Commissioner of Central Excise, Raipur' - 2010 -TMI - 77318 - CESTAT, NEW DELHI it was held that the Tribunal is empowered to prescribe time limit for complying with the conditions while exercising discretion to grant waiver of pre deposit amount in full or part. Tribunal is empowered to extend stay beyond 180 days for good cause and for reasons not attributable to assessee.

Tribunal is empowered to dismiss appeal for failure to comply with the requirement of pre deposit and also to dismiss appeal for failure to comply with pre deposit order.

NO POWER TO EXTEND THE BENEFIT:

The Board has issued circular in exercise of its power available under Sec. 37B of the Central Excise Act, 1944. The powers are absolutely executive powers and no such powers are available with the Tribunal. The Tribunal cannot in exercise of quasi judicial power extend the benefit under the Notification to the period for which it has not been specifically made applicable. If we accept the contention sought to be raised on behalf of the appellants it would virtually amount to rewrite the notification so as to grant the benefit there under for the period for which the executives have not thought it appropriate and fit for grant of the benefit there under.

NO POWER TO GO INTO THE VALIDITY OF NOTIFICATION:

The Tribunal held that anti-dumping duty cannot be levied on the importers for the imports made after the expiry of Annexure A Notification. The High Court held that the Tribunal has no power to go into the validity of Annexure B notification providing for anti-dumping duty with effect from the date of introduction of provisional duty under Annexure A Notification, nor have they found Annexure B Notification invalid. It is not known on what basis the Tribunal has held that anti-dumping duty cannot be levied after expiry of Annexure A Notification, which is the one providing for provisional duty pending final orders in the investigation initiated under the Anti-dumping Rule. The order of the Tribunal is therefore contrary to Annexure B Notification which is the basis of the levy. The Tribunal committed mistake probably by assuming that levy is under Annexure A notification which provides for provisional duty and since it had expired the Tribunal held that anti dumping duty cannot be levied on the importers for imports made after expiry of Annexure A Notification.

POWER TO IMPOSE PENALTY:

In 'Commissioner of Central Excise & Customs, Surat - II V. S.M. Vij' - 2010 -TMI - 76792 - GUJARAT HIGH COURT it was held that the Tribunal was established under the Act and the Tribunal is having discretion under the Act to impose suitable penalty as can be seen from Rule 209A. Chapter XII of the Central Excise Rules, 1944 refers to penalties and confiscation. Rule 209 provides for 'penalty for certain offences'. It provides that any person who acquires possession of, or is in any way concerned in transporting, removing, depositing, keeping, concealing, selling or purchasing or in any other manner deals with, any exercisable goods which he knows or has reason to believe to confiscation under the Act or these rules, shall be liable to a penalty not exceeding thrice times the value of such goods or five thousand rupees whichever is greater. Thus the Rule 209A provides for discretion.
It is required to be mentioned that there is no provision in the Rules or administrative instructions which require the Tribunal to record reasons while imposing the penalty or for modification thereof. In this case the Tribunal, as regards the penalty on the individuals, who are the Officers of the company, if modified considering the fact that they are salaried employees of the firm and still considering the role played and their involvement substantial penalty has been imposed. It cannot be said that the order is not justified merely because it has modified the penalty on individual.
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