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Himalaya Paper Machinery (Pvt.) Vs. Collector of Central Excise - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Delhi
Decided On
Reported in(1985)(21)ELT488TriDel
AppellantHimalaya Paper Machinery (Pvt.)
RespondentCollector of Central Excise
Excerpt:
.....bank guarantee for the balance of the duty amount. subject to compliance with this direction, the bench stayed the recovery of the amount till the hearing and disposal of the appeal.2. the present appeal was initially filed as a revision application before the central government against order no. 60-b, dated 20-3-1983 passed by the central board of excise and customs.3. in the present application, it is urged, apart from the inability of the applicants to comply with the terms and conditions of the stay order on account of difficult financial position, that pre-deposit of duty is not necessary in the present matter since the revision application was filed on 1-6-1982, that is, before section 35-f was introduced in the central excises and salt act, 1944.4. as far as the legal proposition.....
Judgment:
1. The present application is with reference to Stay Order No.C-1/1985, dated 4-1-1985. By the said order, the Bench directed the Applicants to pay in cash Rs. 60,000/- out of the total amount of Rs. 2,42,689.41 demanded from them as duty and furnish, to the satisfaction of the concerned Collector, a bank guarantee for the balance of the duty amount. Subject to compliance with this direction, the Bench stayed the recovery of the amount till the hearing and disposal of the appeal.

2. The present appeal was initially filed as a revision application before the Central Government against Order No. 60-B, dated 20-3-1983 passed by the Central Board of Excise and Customs.

3. In the present application, it is urged, apart from the inability of the applicants to comply with the terms and conditions of the Stay Order on account of difficult financial position, that pre-deposit of duty is not necessary in the present matter since the revision application was filed on 1-6-1982, that is, before Section 35-F was introduced in the Central Excises and Salt Act, 1944.

4. As far as the legal proposition is concerned, there is no dispute about it as has been laid down by the majority decision of the larger bench in the case of Aminchand Payarelal v. Collector of Central Excise, Chandigarh [reported in 1984 (16) E.L.T. Page 126] that the provisions of Section 35F of the Central Excises and Salt Act making the right of appeal subject to prior deposit of duty or penalty w.e.f.

11-10-1982 applies to all appeals filed before the Tribunal on or after 11-10-1982 irrespective of initiation of original proceeding or date of passing the order appealed against. All appeals to the Appellate Tribunal are to be filed under the provisions of Chapter VI-A of the Central Excises and Salt Act, therefore, the provisions of Section 35F making the right of appeal subject to the condition of prior deposit of the amount of duty or penalty are invariably applicable to all appeals filed before the Tribunal on or after 11-10-1982, because the right of appeal as it existed before 11-10-1982 has been taken away from the applicants as they cannot now file appeals before the erstwhile appellate authority. Moreover, these appellate authorities have also been abolished. The larger bench decision has overruled the earlier decision of this Tribunal in Piya Pharmaceutical Work-1983 E.L.T. 1671.

East Regional Bench of the Tribunal also took the view in the case of Ferro Coatings and Colours Ltd. v. Collector of Customs, Calcutta 1985 (5) E.T.R. 249 that pre-deposit of penalty or duty is attracted only in those cases where appeal is filed on or after 11th October, 1982.

5. In this case, the Revision Application was filed on 1-6-1982, i.e.

before Section 35F was introduced in the Central Excises and Salt Act, and therefore, we hold that prior deposit of the duty amount cannot be insisted upon before hearing the appeal of the appellants. But we have to see whether the appellants have requested the Tribunal to waive the condition of prior deposit, pending appeal, of duty demanded or penalty levied as laid down under Section 35F of the Central Excises and Salt Act or they have requested to grant stay order for the recovery of this amount. To our mind waiver of pre-deposit of duty amount and penalty amount is quite different and distinct relief than that granting a stay order restraining the excise authorities to recover this amount of duty and penalty. The power of granting such stay is an incidental and ancillary power given to the Tribunal in the discharge of quasi-judicial functions.

6. A perusal of the record shows that the appellants in the present case never requested this Tribunal to waive pre-deposit of the duty demanded or penalty levied. They have requested vide their application dated 27-11-1984 that stay against the recovery of duty amounting to Rs. 2,42,689.46 be granted till the disposal of the appeal.

7. Considering this request of the appellants, this Bench of the Tribunal vide Stay Order No. C-1/1985, dated 4-1-1985, granted stay to the appellants on the condition that they should pay Rs. 60.000/- in cash and furnish to the satisfaction of the concerned Collector a bank guarantee for the remaining duty amount. It was ordered that on compliance with this direction, the recovery of the said balance amount shall stand stayed till the hearing and disposal of the Revision Application which is now the transferred proceeding before the Tribunal.

8. To our mind, it is not an order passed under Section 35F of the Central Excises and Salt Act. It is an order of stay of the recovery of the duty amount which this Bench of the Tribunal has passed exercising its incidental and ancillary power.

9. The appellants have not brought to our notice any new facts which have come into existence after the passing of the stay order entitling them the grant of stay order unconditionally. All the contentions of the appellants were duly considered before passing the Stay Order C-l/1985.

10. We, therefore, order that the appeal would proceed without insisting on the prior deposit as stipulated under Section 35F but the stay of the recovery of the duty amount would be only subject to the order already passed by us on 4-1-1985.


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