Customs, Excise and Gold Tribunal - Delhi
M/S General Engineering Works, ... vs Cce, Jaipur-1 on 3 April, 2001
ORDER
P.G.Chacko
1. This application prays for dispensing with pre-deposit of duty amount of Rs.3,66,293.00 under Section 35F of the Central Excise Act.
2. Examined the application and heard both sides.
3. Ld. Advocate Shri K.K.Anand for the applicants submits that the appeal is against the order of the Commissioner (Appeals) passed in violation of the principles of natural justice. The lower appellate authority, by the impugned order, rejected the assessee's appeal on the sole ground of non-compliance with the requirement of pre-deposit of duty under Section 35F, without giving any opportunity of personal hearing to the appellants. Counsel submits that since the impugned order is in gross violation of the principles of natural justice, the party has a strong prima facie case for waiver of pre-deposit. Ld. SDR Shri M.D.Singh reiterates the findings of the adjudicating authority and opposes Counsel's plea of prima facie case.
4. Considered the submissions. The issue in the appeal is whether Modvat credit to the extent of Rs.3,66,293.00 taken by the appellants on the inputs in the month of October 1998 on the basis of duty-paying documents issued in June and July 1997 is liable to be recovered from them under the erstwhile Rule 57I of the Central Excise Rules, 1944. The show-cause notice for recovery was issued on 23.04.1999. The demand of duty was confirmed by the jurisdictional Assistant Commissioner on 27.07.1999. Rule 57I and other Modvat Rules were repealed w.e.f 01.04.2000 without any saving clause in the new Rules (the CENVAT Rules) which were substituted for the old rules by Notification No.11/2000-CE (NT) dated 01.03.2000. The Southern Regional Bench (SRB) at Bangalore held in the case of Wipro Ltd & Ors Vs CCE, Bangalore [2001 (43) RLT 317] that all proceedings including appeals before the Tribunal involving issues relating to Departmental demands for recovery of Modvat credits under Rules 57I and 57U of the erstwhile Modvat Rules should be considered to have lapsed with the repeal of the said Rules. After considering the SRB's decision, this Bench, while considering a similar question, took the view that the correctness of the decision in Wipro (supra) was not free from doubt and hence referred the question to a Larger Bench as per order dated 29.03.2001. If the decision of SRB were to be followed, the appeal of the present applicants and, for that matter, the present application itself should be dismissed as not maintainable, in which case there would be no question of waiver of pre-deposit or stay of recovery. Now that the question of maintainability of appeals like the present applicant's appeal stands referred to Larger Bench, the present application must wait for the decision of the Larger Bench. The application is, therefore, adjourned to 26.06.2001.
5. Since any Departmental proceedings for recovery of the duty from the applicants in the meanwhile, will be grossly prejudicial to the assessee, I find that this is a fit case for grant of ad interim stay of recovery in exercise of the power vested in this Tribunal under Rule 41 of the CEGAT (Procedure) Rules, 1982. Accordingly, there will be a stay of recovery of the duty till final disposal of the present application.
(Dictated and pronounced in open Court.)