Customs, Excise and Gold Tribunal - Calcutta
Tata Chemicals Ltd. vs Commissioner Of C. Ex. on 29 January, 2007
ORDER D.N. Panda, Member (J)
1. The matter in controversy is that the order of the Tribunal passed on 4-12-2006 in the case of Texmo Industries v. CCE, Coimbatore and the order passed on 13-12-06 in the case of Rallies India Ltd. v. Commr. of Central Excise, Salem were claimed to be coming to rescue of each other. While this matter was taken up for an interim order on 22-12-2006, none of the two orders were placed by any of the parties before this Bench. Therefore, considering facts and circumstances of the case, order was passed directing the appellant to deposit Rs. 20.00 crores by the dates stipulated in that order. Soon after that, both the orders aforesaid emerged for which the petitioner came before this Bench stating that in view of legal controversy, modification of the order dated 22-12-2006 was warranted.
2. The cry of the Appellant is that the output that emerges having suffered the duty, the input credit should be legitimately given to the appellant when there is no lapses on the part of the appellant to such entitlement. The products manufactured are partly exempt and partly dutiable. Most important aspect in this case is the fertilizer produced for the farmers is a matter of national interest. Further, the Ld. Counsel appearing for the appellant was fair enough to state in the last occasion of hearing that Rallies India 2007 (208) E.L.T. 25 (Tri.-LB) order has gone against him. He submitted that still a prima facie case is in its favour and today in support of his argument, he relied on the order of the Tribunal in the case of Texmo Industries v. CCE, Coimbatore 2007 (208) E.L.T. 338 (Tri.-LB). He further submitted that no duty was liable to be paid on the NFC and they had rightly paid duty whether before or after adjudication order which is subject to verification of record. Fundamentally, he did not differ to deposit the duty on the NFCs and even payment of duty thereon remained undisputed. He further submitted that if entire gamut of the case is tested on the touch of stone of CENVAT Credit Rules, 2004 that will not also give rise to any demand. He, therefore, submitted that if there is any modification to the interim order dated 22-12-2006 is made that will not cause any injustice nor affect public interest and furthermore, such modification shall not be oppressive.
3. The Ld. Counsel appearing for the Revenue repeatedly submitted that Revenue has a very strong case based on the CENVAT Credit Rules, 2004. Total reliance was placed on Rallies India's case which was decided on 13-12-2006. That was latest decision and that should be followed. The Ld. Counsel also made his efforts to justify that Rallies India case holds the field and in favour of Revenue.
4. Heard carefully both the sides. Their submission throws light that the matter needs thread bare consideration to arrive at the conclusion which can only be done in the course of merit hearing. Two orders passed by the Tribunal having come to rescue of each other, such a debatable issue cannot be examined in the course of hearing a miscellaneous application which is a summary hearing in the process of passing interim order.
5. It can clearly be said at this stage that whenever there is legal controversy, there should be stay of operation of an impugned order. All the aspects of the case when examined in the light of the case decided by Supreme Court on 23-11-2006 in the case of Benara Valves Ltd. v. Commissioner of Central Excise it appears that modification of the order dated 22-12-2006 would prevent public mischief and would not shake citizens faith in the impartiality of public administration. Accordingly, it is ordered that the order dated 22-12-2006 may remain inoperative as an interim measure and expeditious disposal of the appeal may be taken up. It would be proper for both the sides to make themselves ready with all documents for expeditious disposal of the matter on 6-3-2007. It is made abundantly clear to both the sides that at their own interest they should ensure that the matter is expeditiously disposed.
(Dicated and pronounced in the open court)