9911796707
TMI Blog2009 (4) TMI 103X X X X Extracts X X X X X X X X Extracts X X X X ..... power – appellants requested to refer the matter to Larger Bench – Held that the demand of referring the issue to Larger Bench is not tenable – appellant directed to comply with the orders of the commissioner (appeals) - E/80-81/2009-Mum - S/153-154/2009-WZB/C-II(EB), - Dated:- 2-4-2009 - Justice R. M. S. Khandeparkar, President and Shri A. K. Srivastava, Member (T) Shri S.S. Pathak, Advocate, for the Appellant. Shri P.K. Agarwal, DR, for the Respondent. [Order per : Justice R.M.S. Khandeparkar, President (Oral)]. - Heard the ld. advocate for the applicants and ld. DR for the respondents. The applicants have challenged the order dated 12-1-09 passed by the Commissioner (Appeals), Mumbai. By the present applications, the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -deposit. 3. The ld. DR on the other hand, drew our attention to the decision of the Division Bench of the Bombay High Court in Baron International Ltd. v. UOI reported in 2004 (163) E.L.T. 150 (Bom) and of the learned Single Judge of the Karnataka High Court in Commissioner of Central Excise, Bangalore III v. McDowell Co. Ltd. reported in 2005 (186) E.L.T. 145 (Kar.) and submitted that the law on the point that the quasi-judicial authority has no jurisdiction to review its earlier order is now well settled and therefore, there is no scope for exercise of power of review in respect of the order in the appeal also, and on that ground itself, there is no scope for grant of any stay as such. 4. The applications for stay filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty demanded or penalty levied would cause undue hardship to such person, the Commissioner (Appeals) or, as the case may be, the Appellate Tribunal may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue. The provision further provides that where an application is filed before the Commissioner (Appeals) for dispensing with the deposit of duty demanded or penalty levied under the first proviso to Sec. 35F, the Commissioner (Appeals) shall, where it is possible to do so, decide such application within thirty days from the date of the application. Obviously, therefore, the application which is contemplated under Sec. 35F is to be adjudicated by the lower Appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ie, examined by CEGAT to find out whether any change in circumstance after the previous order, is shown with sufficient material in that behalf; or any other reason prima facie; exists warranting modification of the previous order on the ground which was not available when the previous order was made. At the threshold, if such preliminary enquiry is made by the Tribunal, we are sure in most of the cases application may not be required to be heard on merits. Had such enquiry been made by the CEGAT in this behalf in this case, we are sure, Tribunal would have saved its labour and time and would not have been required to devote nine pages for writing impugned order. We direct that henceforth the Tribunal shall first make prima facie, enquiry w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the order of the Commissioner (Appeals) refusing to modify its earlier order. 8. In one of the appeals before the Commissioner (Appeals), 50% of the duty demanded has been directed to be deposited as precondition for hearing the appeal, whereas, in another appeal only 25% of the penalty amount has been directed to be deposited. Taking into consideration, the fact that no case of any financial hardship as such has been made out for compliance of the stay order and bearing in mind the Revenue interest, we do not find any justification for grant of stay or reduction in regard to the pre-deposit. The decision of the Apex Court in Mehsana Dist. Co-op. Milk Pvt. Ltd. v. UOI reported in 2003 (154) E.L.T. 347 (S.C.) is in the nature of re ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
