Customs, Excise and Gold Tribunal - Calcutta
M/S. Chowbey Sugandhit Tambaku Co. vs C.C.E., Patna on 20 July, 2001
ORDER
C.N.B. Nair
1. This application is directed against the recovery proceedings initiated by the Central Excise authorities for the recovery of central excise duty of about Rs. 69.81 lacs. The prayer in the application is as under:
" That the petitioner submits that on the facts and in the circumstances of this case and the submission made here-in-above the recovery of excise duty be stayed till the disposal of the reference application filed before the Hon'ble Kolkata High Court, Kolkata.
It is, therefore prayed that your honour may graciously be pleased to consider the submissions as made in the foregoing paragraphs and further be pleased to stay the impugned demand of Central Excise duty amounting to Rs. 69,81,987.84 only made by the Commissioner of Central Excise, Patna and confirmed by the Central Excise and Gold (control) Appellate Tribunal, Kolkata and further be pleased to direct the Superintendent of Central Excise, Bhagalpur to allow the petitioner to remove branded chewing tobacco from its Warehouse till the disposal of the reference application by the Hon'ble Kolkata High Court And/or Pass such other order (s) as your may deem fit and proper. It is prayed accordingly."
2. The relevant facts leading to the filing of the present Misc. Application are that the Commissioner Central Excise, Patna confirmed a duty demand of Rs. 69,81,987.84 upon the applicant M/s Chowbey Sugandhit Tambaku Co. vide Adjudication Order dated 31.8.98. The Commissioner also imposed certain penalties on the appellant. Aggrieved by that order, M/s Chowbey Sugandhit Tambaku Co. filed appeals before this Tribunal. The Tribunal passed its order No.A-1852-1858/Cal/2000 dated 13.11.2000 disposing of the appeals. That order confirmed the duty demand; but gave some relief to the appellants with regard to penalties. The subject recovery proceedings initiated by the Central Excise authorities are in pursuance of the duty demand confirmed by the Commissioner and upheld by this Tribunal.
3. During the argument of the Misc. Application, learned Counsel representing the appellant submitted that duty demand and the recovery proceedings may be stayed by us in view of the fact that M/s Chowbey Sugandhit Tambaku Co. have filed a reference application in the Hon'ble Kolkata High Court and the High court has passed order dated 15.5.2001 issuing rule returnable within six weeks. The learned Counsel for the appellants drew our attention to the various provisions relating to statement of case to High Court and submitted that if a High Court directs the Appellate Tribunal to refer the question of law raised in the application to it the Appellate Tribunal has to within 120 days of the receipt of such direction draw up a statement of case and refer it to the High Court. The learned Counsel submitted that in the present case a reference application is pending before the High Court and if the stay of recovery of the amounts confirmed in the Tribunal's Order is not granted during the pendency of the reference application and the recovery proceedings are allowed to continue irreparable damage would be cause to the appellants' business. Relying on the decision of the Apex Court in the case of Commissioner of Income Tax, Delhi vs. Bansi Dhar 7 Sons learned Counsel submitted that the Appellate Tribunal retained jurisdiction till the disposal of the reference application by the High Court, disposed of with regard to grant of stay on realisation of duty and that in the present case, exercise of that power was not fully justified to prevent miscarriage of justice.
4. Learned SDR has opposed the application for grant of stay and has submitted that duty demand was confirmed by the Tribunal after considering merits of the case in detail. He, therefore, contended that there was no merit in the prayer for grant of stay. He also pointed out that as no direction had been issued by the High Court to the Tribunal for sending up a statement of case, the Tribunal has not acquired any justification in the matter.
5. On a perusal of the records of the case we find that this Tribunal has already disposed of the case relating to the duty demand and after examining the legal and factual questions involved, had confirmed the duty demand. Therefore, there is considertable force in the learned SDR's submission that, on merits, there is no case for grant of stay. We also find that even thought he reference application has been filed before the Calcutta High Court, the High Court has not directed the Tribunal to prepare and send the statement of case. The jurisdiction in the Tribunal to consider passing Stay Order can arise only if the reference application is admitted by the High Court and the Tribunal is directed to refer the question of law raised in the application, draw up a statement of case and submit it to the High Court. The mere filing of reference application before the High Court or pendency of a reference application before the High Court is no ground for considering grant of stay of recovery of duty which has already been confirmed by the Tribunal.
6. In view of the above stated legal position, we do not consider this to be a fit case for grant of stay. The Miscellaneous Application is, therefore, rejected.
Pronounced today.