Bharathi Cement Corpn. P. Ltd. vs Commr. of C. Ex., C. and S.T.

Kalyan Jyoti Sengupta, C.J.—We have heard Mr. S. Ravi, learned Senior Counsel for the appellant and the learned counsel appearing for the Revenue on notice. After hearing them, we admit the appeal on the following substantial questions of law:

(a) Whether the C.E.S.T.A.T. was correct in law in passing conditional order on appellant''s application for stay and waiver of pre-deposit, in spite of the undue hardship that the appellant would suffer by the wrong denial of Cenvat of credit contrary to well established law made out by the appellant?

(b) Whether the C.E.S.T.A.T. was right in passing inconsistent orders in respect of cases that were identical on facts and applying law iniquitously in respect of different cement companies that were identically placed?

Instead of keeping this matter pending, we decide the appeal itself today. This appeal is preferred against the judgment and order of the learned Customs, Excise and Service Tax Appellate Tribunal, South Zone Bench, Bangalore, Court-1 (hereinafter referred to as the Tribunal). By the impugned order, application for waiver of pre-deposit was partly allowed. However, the appellant is aggrieved by this order and wants that there should be a full waiver.

Mr. S. Ravi, learned Senior Counsel for the appellant submits that the learned Tribunal on identical facts, which are also involved herein, has granted suitable relief by order dated 28-10-2013. Mr. S. Ravi, is fair enough to say that there is no scope to argue all these points before the Tribunal as the impugned judgment is also contemporaneous to the aforesaid judgment and, as such, learned Tribunal had no occasion to deal with the contentions raised by the appellant and they are raised for the first time before us.

Under these circumstances, we set aside the judgment and order of the learned Tribunal and we direct the Tribunal to re-hear the matter taking into consideration all the points raised before us. This exercise shall be done within a period of four weeks from the date of communication of this order. The appeal is accordingly allowed to the extent as above. No order as to costs. As a sequel to the disposal of the appeal, all the interlocutory applications shall stand disposed of.