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TMI Blog2010 (9) TMI 185X X X X Extracts X X X X X X X X Extracts X X X X ..... nd decide the same on merits – Matter remanded back to Tribunal. - CEAC Nos. 10-15 of 2009 and CM Nos. 18884, 18896, 18906, 18908, 18910 and 18912 of 2009 - - - Dated:- 17-9-2010 - CORAM : HON'BLE MR. JUSTICE A.K. SIKRI HON'BLE MR. JUSTICE MANMOHAN SINGH Ms. Seema Jain with Ms. Manpreet Sethi and Ms. Savita Singh, Advocates Mr. Mukesh Anand with Mr. R.C.S. Bhadoria and Mr. Sailesh Tiwari, Advocates. A.K. SIKRI, J. (ORAL) 1. All these appeals arise out of common proceedings, which was triggered on the issuance of show cause notice dated 02nd January, 2007 alleging that M/s. Natraj Plast Industries Ltd. had availed the CENVAT Credit wrongly and illegally. It is not necessary to go into the details thereof. Keeping ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reads as under: "6. It is also submitted by applicant that Rs.20 lakhs has already been deposited by the applicant. In view of the fact the inputs, on which credit is availed, are cleared without payment of duty, we find it is not a fit case for waiver of duty. After taking into consideration the facts and circumstances and financial hardship into the account, applicants are directed to make a deposit an amount of Rs. forty lakhs in addition to the amount had already been deposited, within a period of eight weeks. On deposit of above-mentioned amount, the pre-deposit of remaining amount of duty and penalty are waived. Compliance reported on 17th November 2008." 2. The appellants challenged this order of pre-deposit by filing Writ Peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are concerned. These orders are challenged by means of the instant appeals and following two questions of law are raised for determination: (a) Whether the Tribunal Committed an error in dismissing the appeal of the appellant, in spite of the appellant having complied with the stay order of the Tribunal? (b) Whether the Tribunal was right in dismissing the appeal of the appellant for failure to deposit interest, when there was no direction to deposit interest in Stay Order? 5. We admit these appeals on the aforesaid two questions. We have also heard the matter finally with the consent of the counsel for the parties. 6. Relevant portion of the order of the Tribunal on the stay application/waiver of pre-deposit has already been ext ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .40 lakhs. 7. Be as it may, it is not even necessary to venture into the implications of the aforesaid orders. It is because of the reason that provisions under Section 35F of the Act are clear and explicit in this behalf. Section 35F reads as under: "35F. DEPOSIT, PENDING APPEAL, OF DUTY DEMANDED OR PENALTY LEVIED. Where in any appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of Central Excise authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied: Provided that where in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... about the "interest" at all insofar as stay of interest component is concerned, that is taken care of in the explanation. Once there is a stay of "duty demanded", the interest payable under the provision of the Act for the Rules would also be stayed. 9. There is yet another aspect, which has lost sight of by the Tribunal while passing the impugned Order-in-Original dated 21.08.2009 dismissing the appeal. As per the Order-in-Original, interest is demanded only from M/s. Natraj Plast Industries Ltd. on the purported wrong availment of CENVAT/MODVAT Credit. There was no interest payable by other appellants. Therefore for alleged non-payment of interest, appeals of other appellants in any case could not have been dismissed. 10. We, thus, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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