Customs, Excise and Gold Tribunal - Delhi
Nissan Rubber vs Collector Of Central Excise on 9 October, 1992
Equivalent citations: 1993(63)ELT257(TRI-DEL)
ORDER G.P. Agarwal, Member (J)
1. When the Misc. Application was taken up for hearing, Shri B.B. Gujral, learned counsel, at the outset submitted that the present Bench is not competent to hear the instant application. Elaborating on his submissions Shri Gujral, learned counsel, submitted that earlier Stay Order No. 01/92-C, dated 26-12-1991 was passed by a three Member Bench directing the applicant to deposit Rs. 12 lakhs (Rupees Twelve Lakhs) against the amount of duty demanded. The present application is for reconsideration/review, including rectification of the said Order. When the present application came up for hearing on 5-6-1992 by the Two-Member Bench, the Bench observed that since the present application relates to the modification of the stay order passed by a Three-Member Bench it would be more appropriate if the present application is heard by a Three-Member Bench, preferably by the same Bench or at least by a Three-Member Bench and, therefore, the matter be placed before the Hon'ble President. Thereafter the papers were placed before the Hon'ble President of this Tribunal who vide his order dated 10-6-1992 passed the following order :
"The matter be heard by the Bench as constituted on the date of hearing."
Consequently, the present application again came up for hearing on 24-7-1992 before the Two-Member Bench but adjourned at the request of the learned counsel to 28-8-1992. After narrating the sequence of events as aforesaid he submitted that the order passed by the Hon'ble President on 10-6-1992 has no legal validity and is, therefore, non est. He also drew our attention to his written submissions filed on 22-9-1992 wherein in paragraph 3 it has been stated that the point that arises in the present case is whether such an order passed by a particular Bench of this Tribunal which happened to be a Three-Member Bench can be reviewed and modified by a Two-Member Bench. In paragraph 4 it has, further, been stated that review and modification of an order passed by a Bench implies that the Bench undertaking consideration of such review and modification must of necessity has the legal competence to disagree with the order passed earlier and to modify it in whatever manner the Bench concerned deemed fit. The case of Union of India v. Paras Laminates, 1990 (49) E.L.T. 322 (SC) has also been cited. It was his contention that the fact that the order in the present case is interlocutory in character does not alter the basic position. The case of S.K. Bhatija's (1989) 3 SCC 396 has also been cited regarding the judicial decorum and legal propriety. In a nutshell his submission was that the present application be heard by a Three-Member Bench notwithstanding the Order of the Hon'ble President dated 10-6-1992.
2. In reply Smt. Ananya Ray, learned SDR, submitted that the present application is not an application for modification and it could be termed as an application for variation or vacation of the interim order (stay order) passed earlier and cited the case of Empire Industries Ltd. v. Union of India, 1985 (20) E.L.T. 179 (SC) wherein in paragraph 53 it is observed that -
"Good deal of arguments were canvassed before us for variation or vacation of the interim orders passed in these cases. Different courts sometimes pass different interim orders as the courts think fit. It is a matter of common knowledge that the interim orders passed by particular courts on certain considerations are not precedents for other cases may be on similar facts. An argument is being built up now-a-days that once an interim order has been passed by this Court on certain factors specially in fiscal matters, in subsequent matters on more or less similar facts, there should not be a different order passed nor should there be any variation with that kind of interim order passed. It is submitted at the Bar that such variance creates discrimination. This is an unfortunate approach. Every Bench hearing a matter on-the facts and circumstances of-each case should have the right to grant interim orders on such terms as it considers fit and proper and if it had granted interim order at one stage, it should have right to vary or alter such interim orders...".
3. We have considered the submissions. At the out-set it may be stated that on a perusal of the present application it appears that the applicants are themselves not clear as to whether the present application is for variation or review. They have described it as "An application for variation of the Order No. 01/92-C.". Then again in paragraph 1 they have stated that they are making this application for variation and reconsideration of the order. At page 4 they have stated that they pray that this Tribunal be pleased to review the said order so as to grant the applicants a blanket stay. When repeatedly asked by the Bench to clarify the discrepancy Shri Gujral, learned counsel, could not reply satisfactorily. At one stage, he submitted that this is a review application adding that though it may include the prayer for rectification. When pointed out by the Bench that if the present application is for rectification of mistake then under Rule 31A of the CEGAT (Procedure) and Rules, 1982, the President has the power to pass such orders regarding the hearing of the application by a Bench different from the Bench which heard and passed the order earlier, he submitted that this Tribunal has inherent powers to reconsider or review its interlocutory order under Rule 41 of the CEGAT (Procedure) and Rules, 1982 as interpreted by the Apex Court in Union of India v. Paras Laminates, 1990 (49) E.L.T. 322, and, therefore, the order passed by the Hon'ble President on 10-6-1992, as aforesaid, be ignored.
4. Considered. The present application cannot be termed as application under Rule 31A for rectification of mistake. It, in our considered opinion is, an application to vary or alter the stay order passed earlier and this Bench is competent to hear such application in terms of the judgment rendered by the Apex Court in the case of Empire Industries Ltd. supra, (relevant portion already extracted as aforesaid). That apart when the Hon'ble President on receipt of the papers, (as directed by the Bench vide its Orders dated 5-6-1992) ordered that the present matter be heard by the Bench as constituted on the date of hearing, we are of the view that this Bench is not competent to decide the legality of the said order of the Hon'ble President. If the applicants are aggrieved by the said order of the Hon'ble President the remedy lies elsewhere.
5. Before we part, it may also be stated that the case of Andhra Civil Construction Company v. CEGAT, 1992 (58) E.L.T. 184 (Mad) was also cited by Shri Gujral, learned counsel, wherein the Hon'ble Madras High Court modified the stay order passed by this Tribunal for the reasons mentioned therein on a writ petition filed by the assessee in that case. The ratio of this case is not applicable to the present case.
6. In the light of the foregoing the preliminary objection is over-ruled.
7. Arguing on the merits Shri B.B. Gujral, learned counsel, at the outset repeatedly submitted that he is confining his arguments only on the financial position of the applicant and drew our attention to the provisional Balance Sheet ending 31-3-1991 on the basis of which the aforesaid Stay Order No. 01/92-C was passed and also to the Balance Sheet ending 31-3-1992. It was his contention that while passing the aforesaid stay order the Bench considered the total assets of the Company, including total debtors, sundry creditors, Advances against sales and gross profits. He submitted that actually as per the provisional Balance Sheet ending 31-3-1991 total sundry creditors were Rs. 80,03,148.93 and not Rs. 47,59,505.15. With reference to the Balance Sheet ending 31-3-1992 he submitted that there was a gross profit of Rs. 2,20,575.06 and after making the provision for depreciation the net profit was worked out to Rs. 39,740.66. In reply Smt. Ananya Ray, learned SDR, submitted that the liquidity position of the applicants is sound and they can deposit the part of the duty demanded i.e. Rs. 12 lakhs as ordered by the Bench earlier. It was highlighted that the demand of duty in question relates to the period 12/86 to 9/88 and the Bench vide its aforesaid stay order directed the applicant to deposit Rs. 12/- lakhs (Rs. Twelve lakhs) only within four months from the date of receipt of the order, i.e. 11-1-1992 and till date the applicants have not deposited any amount In other words, her submissions was that they have already utilised the said amount to their advantage by not depositing the said sum as ordered by the Bench earlier for several months and cited the case of Lama Prints v. Union of India, 1992 (61) E.L.T. 179 (Guj).
8. We have considered the submissions. At the outset it may be stated that at the time of hearing and passing of the aforesaid stay order only the provisional balance sheet ending 31-3-1991 was placed by the applicant and after taking into consideration the entire facts and circumstances of the case the Bench directed the applicant to deposit only a part of the amount of duty i.e. Rs. 12/- lakhs out of the total duty amounting to Rs. 24,69,820/- and penalty amount of Rs. 2,50,000/-.
9. On a perusal of the Balance Sheet ending 31-3-1992 we find that the total current assets of the applicants exceeds the total current liabilities substantially i.e. by Rs. 86,30,454.66. Their current assets include inventories to the tune of Rs. 40,34,767.02, sundry debtors Rs. 75,04,771.38 etc. Under these circumstances we do not find any justification to vary or alter the earlier stay order passed by the Bench. In the result the application is rejected. However, before dismissing the appeal for non-compliance of the Stay Order No. 01/92-C, we in the interest of justice, direct the appellants to comply with the said order by 30th November, 1992. Failure to comply with the stay order mentioned above may entail the dismissal of the appeal without any further notice. To come up for passing suitable order after ascertaining the compliance of the said stay order on 15-12-1992.