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TMI Blog2011 (11) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... when there were divergent views of the CESTAT, the proper course for the Aurangabad Bench was to dispose of the appeal on merits instead of setting aside the impugned decision dated 28th February, 2011 without assigning any reasons and directing the CESTAT to pass a fresh order after considering the decisions in the case of Nasik Strips Pvt. Ltd. (supra) and Mithunlal Gupta (supra), especially when the CESTAT in its decision dated 28th February, 2011 has declined to follow its decision in the case of Nasik Strips Pvt. Ltd. (supra) in view of the decision of the Apex Court in the case of Bhagwati Ispat Pvt. Ltd. (supra). - Division Bench to decide the appeals on merits and in accordance with law - 59 OF 2011, 60 OF 2011, 63 OF 2011, 71 OF 2011 - - - Dated:- 9-11-2011 - SHRI MOHIT S. SHAH, CHIEF JUSTICE, J.P. DEVADHAR AND SMT. R.S. DALVI, JJ. Mr. V. Shridharan, senior Advocate with Prakash Shah i/b. PDS Legal for appellant in all the appeals. Mr. V.H. Kantharia for respondent in all the appeals. JUDGMENT PER J.P. DEVEDHAR, J. 1) A Division Bench of this Court at Mumbai by its order passed in these group of appeals on 12th October, 2011 has found it di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Scrutiny of the documents particularly the correspondence between the assessee and the supplier of induction furnace revealed that the average power consumed by the assessee for the manufacture of one M.T. of the final product was between 900-925 KWH upto 17th October, 2005 and thereafter at 850-860 units per metric tonne. However, it was noticed that the electricity actually consumed by the assessee was much more than required for the quantity of the final products recorded in the books maintained by the assessee. The total quantity of electricity consumed by the assessee during the period from 16-12-2003 to 24-11-2008 was 7,91,87,789 units and on the basis of 925 units per MT upto 20/10/2005 and 860 units per MT after 20/10/2005, the assessee ought to have recorded production of 89,887.239 MTS of iron steel ingots, whereas in the books the quantity of production recorded was 53,568.721 MTS. Thus, the unaccounted production was to the extent of 36,318.518 MTS, which was cleared clandestinely without payment of central excise duty 5) In view of the apparent discrepancy in the production of the final products recorded in the books and utilisation of electricity as inputs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unaccounted production on the basis of the electricity admitted to have been consumed by the assessee as reflected in the letters addressed by the assessee to the supplier of electric induction furnaces. The unaccounted production of iron and steel ingots and its clandestine clearance was further corroborated by the purchase bills of traded goods which were found to be bogus and even the burning loss of electricity claimed by the assessee was found to be abnormally high. 8) Accordingly, by order in original dated 1st June, 2009, the adjudicating authority confirmed the demand and recovery of the said amount of Rs.11,51,83,109/- (Rs.11.51 crores approximately) from the assessee under Section 11-A(1) of the Act with interest under Section 11AB of the Act. The adjudicating authority imposed penalty of Rs. 11,51,83,109/- (Rs.11.51 crores approximately) under Section 11AC of the Act and penalty of Rs.1,15,18,311/- (Rs.11.51 crores approximately) under Rule 25 of the Central Excises Rules, 2002. The adjudicating authority has also imposed personal penalty on the Director of the assessee Company. 9) Challenging the aforesaid order in original dated 1st June, 2009, the assessee fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. The learned Advocate for the appellant further pointed out that the Division Bench of this Court in Wardha Coal Transport Pvt. Ltd. vs. Union of India, reported in 2009 (3) Bom.C.R. 306, has observed that once the Tribunal has granted full waiver in similar cases, it would not be proper to take a different view and deny waiver of pre-deposit. According to Mr. Godsay, the Division Bench has not denied the waiver of pre-deposit and, in stead, has directed the Tribunal to decide the appeal in accordance with law. He, therefore, contends that the matter ought to be remanded to the Tribunal to decide it afresh, after considering the aforesaid orders. 4. We have heard the learned counsel for the respondent who has submitted that no substantial question of law has been raised by the appellant and that the CESTAT has not committed any error in directing the appellant to deposit a part of the duty and penalty. 5. In our view, the matter deserves to be remanded to the Tribunal, as the Tribunal should take a consistent view regarding predeposit when the facts and circumstances in the matters before it are similar. Accordingly, the matter is remanded to the Tribunal. The Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of Mithunlal Gupta Bhavashakti Steelmines Pvt. Ltd. V/s. CCE ('Mithunlal Gupta' for short) by its order dated 8th April, 2011 has disagreed with the impugned decision of the CESTAT dated 28th February, 2011 and has granted full waiver of pre-deposit. In these circumstances, it is submitted by Mr. Shridharan that the Aurangabad Bench was justified by setting aside the impugned order of the CESTAT dated 28th February, 2011 in the case of M/s. SRJ Peety Steels Pvt. Ltd. (supra) and remanding the case for fresh decision in accordance with law. 14) Mr. Shridharan further submitted that in the event of this Court coming to the conclusion that the Aurangabad Bench was not justified in remanding the matter for fresh consideration, then and in that event, the assessee must be given an opportunity to establish that the decision of the CESTAT in the case of Nasik Strips Pvt. Ltd. (supra) is the correct decision and the impugned decision dated 28th February, 2011 is erroneous. 15) Mr. Kantharia, learned advocate appearing on behalf of the revenue on the other hand submitted that the revenue involved in all the 38 cases covered under the impugned order of the CESTAT dated 28th Febru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in setting aside the impugned order dated 28th February, 2011 in the case of M/s. SRJ Peety Steels Pvt. Ltd. (supra) without assigning any reasons and whether the Aurangabad Bench was justified in directing the CESTAT to pass a fresh order by considering the decisions of the CESTAT in the case of Nasik Strips Pvt. Ltd. (supra) and Muthunlal Gupta (supra) without recording a finding that the said decisions were applicable to the case of the appellants. 20) The preliminary objection raised by the counsel for the appellants is that in view of the dismissal of the S.L.P. filed by the revenue against the decision of the Aurangabad Bench, it must be held that the decision of the Aurangabad Bench in the case of M/s. SRJ Peety Steels Pvt. Ltd. (supra) has attained finality and the validity of the said decision cannot be questioned after the dismissal of the S.L.P. There is no merit in the above contention, because, it is well established in law that dismissal of an S.L.P. in limine does not constitute a binding precedent. Recently, the Apex Court in the case of Bhakra Beas Management Board V/s. Krishan Kumar Vij Anr. reported in (2010) 8 Supreme Court Cases 701 following its earlier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Apex Court in the case of Bhagwati Ispat Pvt. Ltd. (supra) and accordingly directed the appellant to deposit 50% of duty and 25% of penalty imposed by the adjudicating authority. 23) When the CESTAT by the impugned decision dated 28th February, 2011 has directed the appellants therein including SRJ Peety Steels Pvt. Ltd. to make pre-deposit on the basis of the decision of the Apex Court in the case of Bhagwati Ispat Pvt. Ltd. (supra), the Aurangabad Bench could not have set aside the impugned decision of CESTAT dated 28th February, 2011 without recording a finding as to why the decision of the Apex Court in the case of Bhagwati Ispat Pvt. Ltd. (supra) was not applicable to the case of the appellants. Since no reasons are given for setting aside the impugned decision of CESTAT dated 28th February, 2011, it is difficult to ascertain the basis on which the Aurangabad Bench set aside the impugned decision of CESTAT dated 28th February, 2011. When a decision of the lower authority is set aside, it is advisable on the part of the higher Court to set out the reasons for setting aside the order so that such errors are not committed again by the lower Courts in the future. Therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ratio laid down by the Apex Court in the case of Bhagwati Ispat Pvt. Ltd. (supra) whereas the CESTAT by its impugned order dated 28th February, 2011 has directed to make pre-deposit on the basis of the decision of the Apex Court in the case of Bhagwati Ispat Pvt. Ltd. (supra). Therefore, without considering the applicability of the decision of the Apex Court in the case of Bhagwati Ispat Pvt. Ltd. (supra) to the facts in the case covered under the impugned order dated 28th February, 2011, the Aurangabad bench could not have directed the CESTAT to pass fresh order after considering the decision of CESTAT in the case of Mithunlal Gupta (supra). 26) In any event, when there were divergent views of the CESTAT, the proper course for the Aurangabad Bench was to dispose of the appeal on merits instead of setting aside the impugned decision dated 28th February, 2011 without assigning any reasons and directing the CESTAT to pass a fresh order after considering the decisions in the case of Nasik Strips Pvt. Ltd. (supra) and Mithunlal Gupta (supra), especially when the CESTAT in its decision dated 28th February, 2011 has declined to follow its decision in the case of Nasik Strips Pvt. L ..... X X X X Extracts X X X X X X X X Extracts X X X X
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