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TMI Blog2015 (9) TMI 1388X X X X Extracts X X X X X X X X Extracts X X X X ..... cussions and by respectfully following the Apex Court and High Court decisions, we do not find any apparent and manifest mistake in the Tribunal’s interim order so as to exercise the powers to recall or modify the Misc order [2015 (8) TMI 958 - CESTAT CHENNAI] - Decided against assessee. - Application No.ST/MISC/40613/2015 in ST/40826/2014 - Misc Order No.41202/2015 - Dated:- 11-9-2015 - Shri R. Periasami, Technical Member and Shri P.K. Choudhary, Judicial Member For the Petitioner : Shri Vishal Agarwal, Advocate For the Respondent : Shri M. Rammohan Rao, JC (AR) ORDER Per R. Periasami Appellant filed application seeking modification of this Tribunal s MISC Order dt.29.5.2015. 2. The Tribunal in the MISC Order No.40855/2015 dt.29.5.2015 considered the stay application filed by the appellant for waiver of predeposit of ₹ 25,49,32,832/- along with interest and penalty. The Bench after considering the various submissions of both appellants and the Revenue and upon perusal of records, directed the appellant to make predeposit of ₹ 7 Crores within 8 weeks and to make compliance by 19/8/2015. The adjudicating authority confirmed the service tax d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ules any rectification of mistake/defect which is apparent on face of record can only be considered for rectification whereas in this case appellant is seeking to re-appreciate the findings of the Tribunal s order which amounts to review of order which is not acceptable and impressible in law. He submits that Tribunal has no power to review its own order and submits that Tribunal after considering the stay application and all the case laws already relied by appellant has passed the stay order and ordered only ₹ 7 crores out of total demand of more than ₹ 25 crores which is justifiable and pleads for rejection of modification petition. He relies the following decisions :- (1) CCE Belapur Vs RDC Concrete (India) P.Ltd. 2011 (270) ELT 625 (SC) (2) CCE Calcutta Vs A.S.C.U. Ltd. 2003 (151) ELT 481 (SC) (3) V. Ramakrishna Rao Vs CC Chennai 2011 (267) ELT 293 (Mad.) (4) CCE Pondicherry Vs CESTAT 2014 (299) LET 166 (Mad.) 6. On the documents obtained by appellants through RTI application, he submits that appellant is trying to bring new evidence in the form of R.T.I reply which cannot be considered in the modification application and all the citations relied by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he record. If one looks at the subsequent order passed by the CESTAT in pursuance of the rectification application, it is very clear that the CESTAT re-appreciated the evidence and came to a different conclusion than the earlier one. At an earlier point of time, the CESTAT came to a conclusion that the company to which the respondent-assessee sold its goods was an inter-connected company. In the circumstances, according to the CESTAT, the decision of the department to appoint a Cost Accountant to ascertain value of the goods manufactured by the assessee was considered to be just and proper. However, after considering the submissions made in pursuance of the rectification application, the CESTAT came to a different conclusion to the effect that the assessee company and the buyer of the goods were not inter-connected companies. Different conclusions were arrived at by the CESTAT because it reappreciated the evidence in relation to common directors among the companies and inter se holding of shares by the companies. Re-appreciation of evidence on a debatable point cannot be said to be rectification of mistake apparent on record. ... ... ... 21. This Court ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment of pre-deposit. In my considered view, interim orders of such kind normally granted in appeals, after the appeals are entertained by the courts cannot be equated to an order dispensing with the payment of pre-deposit. In these cases, the interim order passed by the Tribunal is only in respect of 25% of the demand made and regarding the balance 75%, it is the statutory obligation under Section 129-E of the Act for the petitioner to deposit. Since the petitioner did not discharge such statutory obligation under Section 129-A of the Act in respect of 75% of the payment, the appellate tribunal was right in rejecting the appeals. 14. The learned counsel would further add that when once such finality has been reached, by invoking Rule 41, the same cannot be recalled. The purpose of Rule 41 is not to nullify the order where finality has been reached in the proceedings. Therefore, Rule 41 does not come to the rescue of the petitioners. 15. In my considered opinion, if at all the petitioners have any grievance regarding the orders passed dispensing with only 25% of the demanded amount under Section 129-E of the Act, the petitioners would have done well by challenging the s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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