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2017 (4) TMI 785 - HC - CustomsNotice of motion - Appeal against Tribunal s order - Revenue seeks a unconditional stay of the Tribunal s order - Rule 41 of the Rules styled as CESTAT Procedural Rules, 1982 - Held that - We do not see how the Revenue, therefore, is prejudiced. The Revenue cannot argue that it will comply with the order of CESTAT qua one vessel only or qua one drawback application. Once the stand is made clear on affidavit and there is an order of sanction passed on 25th February, 2017, then, all the more we are not inclined to grant the request of stay, as made in the present Notice of Motion - unless and until an indemnity in the format prescribed is furnished by the assessee, the assessee will not get the benefit of the Tribunal s order nor a drawback in terms of the same - notice of motion fails - appeal dismissed.
Issues:
- Stay of operation of CESTAT order - Implementation of CESTAT order pending appeal - Request for unconditional stay of Tribunal's order - Invocation of Rule 41 of CESTAT Procedural Rules Stay of Operation of CESTAT Order: The Revenue filed a Notice of Motion seeking a stay on the operation of the CESTAT order pending appeal. The Revenue argued that allowing the implementation of the order while the appeal is pending would render their appeals infructuous. They contended that the Tribunal's order should not be implemented as its correctness and legality were under consideration by the Court. The Revenue highlighted that accommodating the assessee's requests during the appeal process could complicate matters and make recovery difficult if large sums were paid out. The Court noted the Revenue's concerns but ultimately found that the Revenue failed to provide sufficient justification for a blanket stay of the impugned orders. Implementation of CESTAT Order Pending Appeal: The assessee contested the Revenue's motion, stating that the Motions filed were not related to the current issue. The assessee's position was that the vessels in question had followed all necessary customs formalities, and the duty demand was reduced by the CESTAT to the extent of drawback available to the assessee during re-export. The assessee argued against an unconditional stay of the Tribunal's order, as it would mean allowing the Revenue's appeal prematurely and confirming the Adjudication order. The assessee justified the invocation of Rule 41 of the CESTAT Procedural Rules to support their position. Request for Unconditional Stay of Tribunal's Order: The Revenue sought an unconditional stay of the Tribunal's order, emphasizing the need to prevent the implementation of the order until the appeal process was completed. However, the Court found that the Revenue's resistance to granting the drawback, despite the assessee's willingness to provide an indemnity, lacked justification. The Court accepted the statements made in affidavits as undertakings and concluded that the Revenue's arguments did not demonstrate prejudice, especially considering the readiness of the assessee to comply with obligations upon appeal success. Invocation of Rule 41 of CESTAT Procedural Rules: Although the assessee sought to justify the invocation of Rule 41 of the CESTAT Procedural Rules, the Court indicated that it was not a central aspect of the matter. The Court focused on the arguments presented by both parties regarding the stay of the Tribunal's order and the implementation of the CESTAT decision pending appeal. The Court ultimately dismissed the Notice of Motion, emphasizing that the assessee's compliance with undertakings would be necessary to receive the benefits outlined in the Tribunal's order.
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