9911796707
TMI Blog2004 (12) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... artment by adjusting against rebate claims sanctioned to the applicant on export of its goods. 3.Applicant has stated that this Tribunal had, vide Order No. C1/2089/WZB/2003, dated 15-9-2003, waived the condition of pre-deposit of penalty of Rs. 66,00,257/- and Rs. 1,00,000/- imposed by the Commissioner of Central Excise, Raigad, and had also ordered stay against recovery thereof. After expiry of 180 days from the date of stay order, applicant filed an application for early hearing of the said appeal and/or for extension of the stay order, which application was listed for hearing on 8-11-2004. It is further stated that after hearing both sides on 8-11-2004, an order extending stay for a further period of six months was dictated and pronou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rule 41 of the CESTAT (Procedure) Rules, 1982, the Tribunal has powers to make such orders or give such directions as may be necessary or expedient to prevent abuse of its process or to secure ends of justice. Applicant has placed reliance on the decisions of the Madhya Pradesh High Court in the case of Anjali Cooler Pvt. Ltd. v. UOI, 1997 (94) E.L.T. 40, wherein the High Court has by relying upon the decision of the Madhya Pradesh High Court in the case of Gajra Bevel Gears Ltd. v. UOI [1995 (80) E.L.T. 505 (M.P.)] and that, Allahabad High Court in the case of Arvi Components Pvt. Ltd. v. UOI, 1997 (90) E.L.T. 299, held that resort to coercive measures for recovery of disputed amounts, while a stay application is pending before an appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n : "secure the ends of justice" in Rule 41, wide enough to clothe the Tri-bunal with powers to pass such interim orders, as it may deem fit in the facts and circumstances of the case. In addition to this, the power of Appellate Tribunal to confirm, modify or annula the decision or order appealed against also takes in its fold to pass such interim orders as are necessary in order to aid the main relief sought for in the appeal. To put it in other words, the interim relief is granted to pre-serve in status quo the rights of the parties (see Kihoto Hollohan). In Madan Gopal's case, it has been pointed out that the interim orders are passed in aid of the main relief. Therefore, it is quite inherent in the appellate power and more so in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner appropriated the amount against the pending rebate amount. He further stated that the amount has already been adjusted in the Government account, no further coercive action is needed." 8.We have considered the submissions made by both sides and agree with the contentions of applicant that the action recovering disputed amount during the pendency of applications for extension of stay in the facts of this case are clearly an abuse of Tribunal's process. The effect of such an action is to render the stay application/application for extension infructuous and orders passed therein : (i) We find that the Deputy Commissioner has been overzealous and hasty in his acts and his Commissioner, who has to supervise the acts of the D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... functions, leaving no option to the Bench to step in and exercise the mandate under Rule 40 of the CESTAT (Procedure) Rules to take over and exercise control over the departmental authority in relation to the matter of effecting the stay ordered on recovery by this Tribunal. 8.We agree with Mr. Jain's submission that Rule 41 of CESTAT (Procedure) Rules, 1982 would clearly cover a case, of the present type, where the department takes impermissible and undue advantage of the inherent and unavoidable time gap that exists between the date when an application for extension of stay is filed and the time when the order for extension is ultimately received by both the parties. It is a fact well known, even to the department, that there is a backl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssible, then CESTAT would become a mute spectator to patently high handed, unjust, illegal and unconstitutional action on the part of the Respondents. It is settled law that a petitioner in appeal or otherwise cannot suffer, because of the absence of an action on the part of the Court [Rajkumar Dey and Others v. Parapada Dey - 1987 (4) SCC 398]. This principle was applied by the Larger Bench of this Tribunal in the case of IPCL v. CCE - 2004 (169) E.L.T. 267 (Tri. - LB) = 2004 (63) RLT 1 while dealing with the question whether the Tribunal had powers to grant extension of stay. 10.Since nothing contrary has been shown, in view of the above, we direct the Commissioner to return to the applicant the entire amount, which has been appropriate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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