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TMI Blog2000 (10) TMI 622X X X X Extracts X X X X X X X X Extracts X X X X ..... port of the subject application, submits that the Tribunal while making the direction as aforesaid did not take into account the facts that the goods that had been cleared from M/s. HECL on payment of duty as admitted in the show cause notice issued by the Department itself, was dragline equipments. This is apparent from para 4 of the show cause notice where it is stated as follows :- 4. Whereas noticee No. 2 supplied to noticee No. 1 dragline machine in a knocked down condition after payment of Central Excise duty. The final product of the dragline machine as such was assembled at the site of noticee No. 1 as confirmed by the noticee No. 1 vide their letter No. GM/DCH/D/L/FD/17/93-94/6 dated 2-4-94. The charges incurred for the manufacture/erection/commissioning of the dragline were borne by the Noticee No. 1 as per details given below by them in their aforesaid letter. 2.2. Ld. advocate, Shri Bagaria submits that the Tribunal in its Stay Order dated 17-5-99 appears to have been influenced by the observations/findings of the adjudicating authority that the factual information had not been supplied by the applicants/appellants and that HECL had itself denied that it had supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gly. This cannot be changed capriciously by the officer having jurisdiction over the factory of the appellants. Change in assessment and demand of duty as a consequence of that charge in assessments can be made only by the officer who made the assessments in the first stage. Therefore, he also pleads that the show cause notice itself at the first instance lacks jurisdiction. 2.5. Ld. advocate also makes a point that even if it is considered that new goods came into existence at the appellants factory, the appellants/applicants would be entitled to take the Modvat credit of duty paid on the goods at the time of clearance of those goods from HECL. Duty would, therefore, in effect be leviable only on the differential value paid for assembling, installation and supervision charges by the appellants to HECL when an assembly of the said machine took place at the site of the appellants' factory. It would only mean charging duty at the worst valued at Rs. 1,46,15,469.21. The total duty liability of this, would not amount to more than Rs. 20 lakhs or so. Keeping even this aspect in view, the pre-deposit of Rs. 50 lakhs is totally out of proportion. 3. Opposing the contention, ld. SDR, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e installation machine has taken place at the appellants factory. I am afraid that it is not possible at all having regard to the fundamentals of excise duty where assembling any such goods cannot be charged to duty when the machine completely in a knocked down condition has also been charged to duty as a machine. 5. The point taken regarding lack of jurisdiction of the adjudicating authority to decide the case is also well taken. I notice that this plea was not taken before the Tribunal by the ld. Consultant arguing on the stay petition of the applicants. It is true that the Tribunal has taken some view on the merits of the case but if certain important vital pleas were not taken by the ld. consultant for the applicants in the said application, appellant should not be made to suffer for not taking those pleas. I would, therefore, modify the stay order and hold that no pre-deposit is required to be made by the applicants/appellants herein. Tribunal s Stay Order dated 17-5-99 is modified accordingly. Sd/- (P.C. Jain) Vice President 6. [Contra per : Smt. Archana Wadhwa, Member (J)]. - I have gone through the order proposed by the Hon ble Vice President allowing the modificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only cleared the some parts of the dragline equipments and not the complete machine itself. The Revenue has taken a view that the completion of the machine has taken place at the appellants' end emerging into the new product chargeable to duty. These two contrary stands are based upon the evidences produced by both the sides. I would like to record here that this is not a case simplicitor where a legal issue is involved and such a legal issue on the basis of un-disputed facts, was covered by any precedent decision which might have been lost sight of by any of the side or by the Bench in which case the modification application could have been entertainable but where the case involves detailed examination and appreciation of factual position and based upon the evidences when the Bench has taken a view as regards the prima facie nature of the case, the same should not be ordinarily disturbed by a subsequent Bench on the modification application which might amount to sitting in appeal over the earlier decision of the Bench which has been passed after due consideration and deliberation over the issues raised by both the sides. 9. This is also not a case where any subsequent pronounce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the genuineness of the anxiety expressed by Shri Tayal. Repeated applications cannot be encouraged. But there may be exceptional cases with peculiar facts and circumstances wherein in the interests of justice matters have to be heard again and again. Such matters would be very few and the present matter is one of such exceptional nature. 11. While allowing the modification application, in the above referred case, the Bench expressed concern over the modification of earlier stay order passed by the Tribunal. However, the modification was allowed in the said case as there were undisputed facts on records and legal question of the show cause notice having been signed by the Deputy Commissioner instead of the Commissioner as was the requirement of Section 11A of the Act at that point of time was settled in favour of the applicants and the prima facie view could be taken based upon this legal proposition and undisputed facts on record. As already recorded, no legal issue as such is involved in the present case. The disputed question is a question of fact i.e. whether the duty has been paid by M/s. HECL on dragline in completely knocked down position or they have cleared the goods as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... FERENCE OF OPINION Whether the Stay Order No. S-306/Cal/99 dated 17-5-99, directing the appellant to deposit Rs. 50,00,000/- (Rupees fifty lakhs only) required to be modified and entire pre-deposit dispensed with as held by the Hon'ble Vice President or the modification application is required to be rejected, as held by the Member (Judicial). Sd/- (Archana wadhwa) Member (Judicial) Sd/- (P.C. Jain) Vice President THIRD MEMBER s DECISION 15. [Order per : Dr. S.N. Busi, Member (T)]. - The undermentioned difference of opinion between Mr. P.C. Jain, Hon ble Vice-President and Mrs. Archana Wadhwa, Hon le Member (Judicial), has been referred to me for my opinion as a Third Member : Whether the Stay Order No. S-306/Cal/99 dated 17-5-99 directing the appellant to deposit Rs. 50,00,000/- (Rupees fifty lakhs only) required to be modified and entire pre-deposit dispensed with as held by the Hon'ble Vice-President or the modification application is required to be rejected as held by the Member (Judicial). 16. Advancing the arguments on behalf of the applicants/appellants, Shri S.K. Bagaria, ld. Advocate submits that in para 4 of the Stay Order No. S-306/Cal/99 dated 17-5-99, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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