(a) a stay of the operation of the Order-in-Original of the Assistant Collector of Central Excise, as well as the Order-in-Appeal passed by the Collector of Central Excise (Appeals), New Delhi till the Appeal filed before this Tribunal is heard and disposed of; and (b) a restraint upon the Assistant Collector of Central Excise, Sahara pur and the officers subordinate to him from interfering with the removal of printed glass bottles from the A.C.L. Unit of the Applicant's factory and from enforcing recovery of the differential duty for the past period till the appeal is disposed of by the Tribunal.
(a) the Applicant has been a licensee for the manufacture of glass and glassware and commenced as a new venture the process of printing, with ceramic colours, on duty paid aerated water glass bottles in segregated area of its unit at Saharanpur duly approved by the Central Excise authorities; (b) after issue of a show cause notice, the question of the liability of the Applicant for payment of differential duty on the enhanced value of the duty paid glass bottles, in consequence of the aforesaid process of printing, was adjudicated by the Assistant Collector; (c) he held that the assessable value of the glass bottles in question should include the expenses incurred for the aforesaid process of ceramic colouring He did not, however, assess or quantify the amount of differential duty that became due and payable; (d) in appeal the adjudication order was upheld by the Collector (Appeals), New Delhi; (f) nevertheless, the Applicant had previously furnished on or about 7-12-1983, a Bank Guarantee in a sum of Rs. 2 lakhs towards the differential duty involved for past clearances computed on a rough and ready basis; (g) the said Bank Guarantee, valid upto 29-4-1982, was enhanced to Rs. 8 lakhs by executing a fresh Bank guarantee effective from 27-2-1984 and valid upto 31-8-1984. This enhanced value was also arrived at by the Applicant on a rough and ready estimation of the anticipated clearances without any verification or certification by Excise authorities; (h) notwithstanding that the duty amount had not been properly quantified and demanded, the Assistant Collector of Central Excise, Saharanpur had been requiring the Bank to enforce the Bank guarantee and credit the entire amount of Rs. 8 lakhs towards excise duty. On objection by the Applicant, however, the Assistant Collector reduced, in the first instance, the amont claimed from the Bank to Rs. 5,82,743.06 and subsequently advised the Bank not to enforce the Bank guarantee but wait his further advice in the matter.
3. The application was heard by us on diverse dates. Before us it was submitted that undue hardship would be caused if the Applicant was required to comply with all excise formalities before removal of printed glass bottles for various reasons, apart from and in addition to the inability of the Applicant to pay any amount that may be demanded on account of ontinuous losses suffered by the Applicant, on account of which the Applicant is not able to buy raw materials and critical inputs, nor repay the loans to financial institutions. The Applicant also requires over Rs. 2 crores for rebuilding its furnace in the Pune unit. if it is not rebuilt in time, the furnace may collapse causing injuries and unemployment to the employees. While admitting that the Applicant was a subsidiary of Ballarpur Industries Limited, it is contended, however, that M/s. Ballarpur Industries Limited is not required in law to divert its funds to the Applicant.
4. For the Revenue it was submitted that the amount of differential duty for the period between 8-3-1983 and 12-9-1983 has been worked out.
It amounts to a sum of Rs. 2.88 lakhs. The said amount has not yet been demanded from the Applicant.
5. It would appear to us that, in the facts and circumstances of the case,- (a) admittedly, there is as yet no demand for payment of duty in an ascertained amount that had become due and payable for the period prior to the adjudication order. No question of a stay of its recovery, therefore, arises; (b) what is sought to be stayed in the application, on the contrary is the implementation of the orders in adjudication and appeal-consequently, a stay on the quantification, demand and realisation of the duty that became due and payable upto the date of the adjudication order and pursuant thereto and the levy of differential duty for removals subsequent to the order of adjudication and till the disposal of the Appeal before the Tribunal; (c) it may be that a power of stay by the Tribunal, being interlocutory, need not necessarily have to be traced to a specific statutory provision. It is inherent in the power to hear and decide the Appeal itself to make all such interlocutory orders as may be necessary to subserve the balance of convenience and to ensure that no prejudice is caused to either party to the Appeal pending the hearing thereof; (d) even so, the inherent power to make interlocutory orders in an Appeal cannot be but co-equal to the jurisdiction of the Tribunal to hear the Appeal itself. The jurisdiction of the Tribunal is confined to the hearing of the Appeal filed and the power to make an interlocutory order cannot, therefore, extend beyond the subject matter or scope of the appeal itself; (e) in the orders under Appeal, apart from laying down the principle governing the valuation of the products in question, no assessment or quantification of the amount that became due and payable upto the date of the adjudication order, or that may become due and payable thereafter, has been made; (f) an assessment, as is well known, is a quasi judicial process, which involves due application of mind to the facts as well as requirements of law (1978 E.L.T. 416-Asstt. Collector of Central Excise v. National Tobacco Co. of India Limited).
(g) such assessments are not the subject matter of the instant Appeal; (h) it is not competent for the Tribunal to stay the operation of the, orders under Appeal, so that such assessments that may be made not the subject matter of the instant Appeal-can be restrained. The Tribunal's incidental or ancillary power of making an interlocutory orders cannot extend to interference in assessment in adjudication, beyond the scope of the Appeal before the Tribunal; (i) to a similar effect was our decision in 1984 (16) E.L.T. 445 (Tribunal) (Collector of Central Excise v. Crescent Dyes and Chemicals Limited) and