Customs, Excise and Gold Tribunal - Mumbai
Sterlite Optical Technologies Ltd. vs Commissioner Of C. Ex. on 7 November, 2003
Equivalent citations: 2004(163)ELT372(TRI-MUMBAI)
ORDER P.G. Chacko, Member (J)
1. The appellants' Counsel mentions this matter today.
2. We had passed an interim order on 28-10-2003 in the captioned appeals waiving pre-deposit of duties and penalties and granting stay of recovery thereof pending the appeals, without expressing any prima facie opinion on the merits of the demands. That order was passed in the appellants' stay application wherein they had inter alia prayed for a direction to restrain the department from taking physical possession of the factory. The prayer was made under Rule 41 of the CEGAT (Procedure) Rules, 1982.
3. Ld. Counsel submits that, by a letter dated 5-11-2003, the jurisdictional Assistant Commissioner of Central Excise and Customs has asked them to stop operations of the machinery confiscated under the impugned order within 10 am on 6-11-2003 "to enable the enforcement of the confiscation". A copy of this letter has been brought on record. We have carefully perused this letter, which indicates that confiscation of plant and machinery is being enforced "in terms of our order dated 28-10-2003 read with Order dated 13-8-2003 of the Hon'ble High Court, Mumbai". We have also seen the Hon'ble High Court's order, produced by the Counsel. This order of the High Court, in clause (i) thereof, enables the party to apply to the Tribunal for stay of the .impugned order of the Commissioner of Central Excise & Customs and, in clause (iii) thereof, stays the order of confiscation of plant and machinery for a period of eight weeks, subject to the condition that an undertaking be given by the party to the department that they shall not alienate or encumber the said property. It is stated by the Counsel that the said stay order of the High Court has been subsequently extended. It is, however, conceded that the extended period has since expired. Apparently, the party has not taken steps before the High Court for any further extension. Ld. Counsel now submits that a fresh application with a specific prayer for restraining the department from interfering with their manufacturing activity has since been filed and the same stands posted to 17-11-2003. It is his prayer that, in the interest of justice, the department be so restrained till the said application is disposed of. We have heard ld. DR also.
4. Having regard to the totality of the facts and circumstances detailed above, we are of the view that, in the interest' of justice, the department should not enforce the order of confiscation of plant and machinery till the party's application already posted to 17-11-2003 is disposed of by us. Rule 41 of the CEGAT (Procedure) Rules, 1982 empowers us to issue such an injunction in the facts and circumstances of this case. We are inclined to exercise that power for the ends of justice. Accordingly, we direct the respondent not to "enforce the order of confiscation of plant and machinery" or otherwise interfere with the manufacturing activity of the appellants till their application, which already stands posted to 17-11-2003, is finally disposed of by the Bench. Issue order by Dasthi.
5. The D.R. also is directed to communicate this order forthwith to the jurisdictional Central Excise authorities.