M/S. Mahalaxmi Steel Rolling Vs. Cce, Chandigarh - Court Judgment

Excerpt:

.....submissions. as per the decision of the 2-member bench in the case of wipro (supra), all appeals involving departmental demands of duty under modvat rules (rule 57i/rule 57u of the central excise rules) must lapse on account of the repeal of those rules with effect from 1st april, 2000 without any 'saving clause' in the cenvat rules which replaced the modvat rules. since it was felt that the correctness of such a decision was not free from doubt, the issue was referred to larger bench from the case of k.s.chini mills [(e/2032/1997-nb(sm)] as rightly pointed out by ld counsel. thus the very question of maintainability of this appeal is yet to be settled.in an appeal which is not maintainable, any interlocutory application like the present one will also not be maintainable. in this view of the matter, i am unable to entertain the present application till the referred issue is answered by the larger bench. this position, however, should not prejudice the applicant-assessee. i, therefore, invoke the power vested in this tribunal under rule 41 of the cegat (procedure) rule, 1982 and stay departmental proceedings for recovery of the aforesaid duty or penalty till final disposal of the.....

Judgment:

1. This application is for waiver of pre-deposit of duty and penalty amounts and for stay of recovery thereof, pending the appeal.

3. Ld. Advocate Shri K.K.Anand has, at the outset, brought to my notice the decision of the Tribunal's SRB, Bangalore in the case of Wipro Ltd & Ors Vs CCE, Bangalore-I & Ors. [2001 (43) RLT 317], wherein a batch of appeals involving issues relating to Modvat credits were dismissed as not maintainable. He has also submitted that this Bench doubted the correctness of that decision and referred the question of maintainability of a similar appeal to Larger Bench as per order dated 29.03.2001. According to ld. Counsel, since the issue is before Larger Bench, the applicants in the instant case are entitled to waiver of pre-deposit and stay of recovery, according to the consistent practice of this tribunal. On the other hand, ld. JDR Shri A.K.Jain submits that the present application should wait for a decision of the Larger Bench on the referred issue.

4. I have examined the above submissions. As per the decision of the 2-Member Bench in the case of Wipro (supra), all appeals involving Departmental demands of duty under Modvat rules (Rule 57I/Rule 57U of the Central Excise Rules) must lapse on account of the repeal of those Rules with effect from 1st April, 2000 without any 'saving clause' in the CENVAT Rules which replaced the Modvat Rules. Since it was felt that the correctness of such a decision was not free from doubt, the issue was referred to Larger Bench from the case of K.S.Chini Mills [(E/2032/1997-NB(SM)] as rightly pointed out by ld Counsel. Thus the very question of maintainability of this appeal is yet to be settled.

In an appeal which is not maintainable, any interlocutory application like the present one will also not be maintainable. In this view of the matter, I am unable to entertain the present application till the referred issue is answered by the Larger Bench. this position, however, should not prejudice the applicant-assessee. I, therefore, invoke the power vested in this Tribunal under Rule 41 of the CEGAT (Procedure) Rule, 1982 and stay Departmental proceedings for recovery of the aforesaid duty or penalty till final disposal of the present application. As regards waiver of pre-deposit of any amount, it has direct nexus to the maintainability of the appeal and hence the same will be considered after the referred issue is answered by the Larger Bench. The stay application is adjourned to 22.06.2000.