Customs, Excise and Gold Tribunal - Delhi
Collector Of Central Excise vs Sriram Pistons And Rings Ltd. on 8 June, 1993
Equivalent citations: 1993ECR598(TRI.-DELHI), 1994(71)ELT934(TRI-DEL)
ORDER
Harish Chander, President
1. Collector of Central Excise, Meerut has filed the above captioned appeals being aggrieved from the order passed by the Collector of Central Excise (Appeals), Ghaziabad. Two stay applications have also been filed and there is a prayer for grant of stay of a sum of Rs. 22,24,820.94 by the revenue. Shri Prabhat Kumar, the learned SDR who has appeared on behalf of the applicant pleaded that the respondent had charged interest from the customers where there were delayed payments and there were standing instructions to the bank by the respondents as to the charging of interest. He pleaded that where the payment was made within 15 days, no interest was to be paid by the purchaser, but where the payment was made after 15 days i.e. from 15th to 30th the rate of interest was 18% and for more than 30 days it was 24%. He pleaded that in terms of provisions of Section 4 of the Central Excises and Salt Act, 1944, this interest has to be included in the assessable value. He pleaded for the grant of stay.
2. Shri A.R. Madhav Rao, the learned advocate who has appeared on behalf of the respondent, pleaded that the issue has been decided in favour of the respondents. There are decisions of various High Courts as well as of the Tribunal. He referred to the following decisions :-
1. 1992 (59) E.L.T. 306 (Tribunal) - Hindustan Gas and Industries Ltd. v. Collector of Central Excise
2. 1992 (59) E.L.T. 260 (Raj.) - D.C.M. Shriram Consolidated Ltd. v. Union of India
3. 1992 (57) E.L.T. 396 (Bom.) - Raymond Woollen Mills Ltd. v. Union of India
4. 1993 (63) E.L.T. 715 (Tribunal) - Transformers and Electricals-Kerala Ltd. v. Collector of Central Excise.
Shri Madhav Rao pleaded that these judgments are based on the decision of the Hon'ble Supreme Court in the case of AX. Roy v. Voltas Ltd. reported in 1977 (1) E.L.T. (J 177) and these decisions of the High Courts as well as of the Tribunal are after the recalling of the order in the case of Assistant Collector of Central Excise v. Madras Rubber Factory Limited reported in 1989 (41) E.L.T. 703 (SC). Shri Madhav Rao, the learned advocate pleaded that since the respondents have prima facie a good case on merits and the stay applications filed by the revenue be rejected.
3. Shri Prabhat Kumar, the learned SDR in reply referred to the decision of the Hon'ble Supreme Court in the case of Assistant Collector of Central Excise and Ors v. Madras Rubber Factory Ltd. and Ors reported in 1987 (27) E.L.T. 553 (SC). He argued that this decision has been recalled by the Hon'ble Supreme Court which is reported in 1989 (41) E.L.T. 703 (SC). He pleaded that similar issue had come up before the Supreme Court in the case of Snow White Industrial Corporation v. Collector of Central Excise reported in 1989 (41) E.L.T. 360 (SC) and laid special emphasis on para 14 where there is an observation by the Supreme Court that the issue of review of the decision of the MRF was pending before the Hon'ble Supreme Court and subject to the order passed in that review matter, such deductions, as may ultimately be held to be deductible be permitted to the appellants upon proof. Shri Prabhat Kumar, the learned SDR pleaded that since the order has been reviewed and thereafter recalled, the Tribunal should keep the matters till the final decision is given by the Hon'ble Supreme Court.
4. We have heard both the sides and have gone through the facts and circumstances of the case. There is no dispute as to the facts and as such, we need not repeat the same. The issue is fully settled by the two decisions of the Bombay High Court and Rajasthan High Court in the case of D.C.M. Shriram Consolidated Ltd. v. Union of India reported in 1992 (59) E.L.T. 260 (Raj.) and in the case of Raymond Woollen Mills Ltd. v. Union of India reported in 1992 (57) 396 (Bom.). The Tribunal had also the occasion to deal with similar issue in the following cases :-
1. 1992 (59) E.L.T. 306 - Hindustan Gas and Industries Ltd. v. C.C.E.
2. 1993 (63) E.L.T. 715 - Transformers and Electricals, Kerala Ltd. v. Collector of Central Excise and these decisions are later to the decision as to the recalling of the MRF order. The ratio has been laid down by the Hon'ble Supreme Court in the case of A.K. Roy v. Voltas Limited reported in 1977 (1) E.L.T. ( J 177) in para No. 20. Hon'ble Supreme Court in the case of Union of India and Ors v. Bombay Tyres International Ltd. reported in 1983 (14) E.L.T. 1896 (SC) held that even after the amendment of Section 4 of the Central Excises and Salt Act, 1944, the earlier decision in the case of A.K. Roy v. Voltas Limited (supra) still holds good.
5. In view of the above discussion, we are of the view that prima facie the respondents have got a good case on merits. We may further observe that an application under Section 35F is maintainable in the case of an aggrieved person and not in the case of revenue. Stay applications filed by the revenue are only dealt with by the Tribunal in view of the decision of the Hon'ble Supreme Court in the case of ITO v. M.K. Mohammed Kunhi reported in AIR 1969 SC 430. Para No. 8 from the said judgment is reported below :
"8. Section 255(5) of the Act does empower the Appellate Tribunal to regulate its own procedure, but it is very doubtful if the power of stay can be spelt out from that provision. In our opinion the Appellate Tribunal must be held to have the power to grant stay as incidental or ancillary to its appellate jurisdiction. This is particularly so when Section 220(6) deals expressly with a situation when an appeal is pending before the Appellate Assistant Commissioner but the Act is silent in that behalf when an appeal is pending before the Appellate Tribunal. It could well be said that when Section 254 confers appellate jurisdiction, it impliedly grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution and that the statutory power carries with it the duty in proper cases to make such orders for staying proceeding as will prevent the appeal if successful from being rendered nugatory."
6. In view of the above discussion, we are of the view that it is not a fit case where we should exercise our inherent powers for granting stay to the revenue. Both the stay applications filed by the revenue are rejected.