Patel Engineering Ltd. vs Commr. of C. Ex., C. and S.T.

L.N. Reddy, J.

This application is filed with a prayer to review the order dated 9-1-2014 passed by this Court in M/s. Patel Engineering Limited Vs. The Commissioner of Central Excise, Customs and Service Tax, ]. Heard Sri S.R. Ashok, learned Senior Counsel for the petitioner and Sri G. Sampath Kumar, learned Additional Central Government Standing Counsel for the respondent.

The appeal was preferred against the order dated 21-9-2011 passed by the respondent herein. Through the said order, the respondent confirmed the remand of two amounts, namely Rs. 3,87,51,793/- and Rs. 28,94,07,221/-, apart from appropriation of a sum of Rs. 44,45,277/- and penalty of Rs. 32,81,59,014/-. After referring to the various developments that have taken place till the filing of Central Excise Appeal No. 48 of 2013, and the contentions of the parties, we allowed the appeal, by granting waiver of the pre-deposit to the extent of 50% of the amounts mentioned in Clauses (1) and (2) of Paragraph 28 of the Order-in-Original. The petitioner approached the Hon''ble Supreme Court by filing Special Leave to Appeal (Civil) No. 3097 of 2014. Initially, the Hon''ble Supreme Court passed an order on 19-2-2014, directing that no coercive steps shall be taken by the respondent against the petitioner for recovery of the amount. On 7-5-2014, the Supreme Court accorded permission to the petitioner to withdraw the writ petition, leaving it open to the petitioner to approach this Court by filing a review petition. The stay, that was granted by the Supreme Court was extended till 10th June, 2014.

The principal contention urged before us, in the review petition is that though the petitioner pleaded the grounds of financial difficulty in making the pre-deposit, the same was not taken into account by the Tribunal. Reliance is placed upon the judgment of the Supreme Court in State of Haryana Vs. M/s. Maruti Udyog Ltd. Ors., .

We did not undertake any final adjudication, and after giving reasons within the permissible limits of brevity, we allowed the appeal in part, by waiving the condition of pre-deposit on two major amounts, to the extent of 50%.

Extensive arguments are advanced to the effect that in a deserving case, the total waiver can be ordered, particularly when the ground of financial incapacity is pleaded, and that in the instant case, the demand was on the basis of re-opening of the proceedings, and not on the basis of any original assessment.

It is no doubt true that in State of Haryana v. M/s. Maruti Udyog Ltd. and Others (supra), the Hon''ble Supreme Court expressed the view that if the facts warrant, the Tribunal can waive the condition, as to pre-deposit, and the same shall be supported by reasons. However, it was observed that any relief as to dispensing with the pre-deposit on grounds of inability of the assessee cannot be granted for the first time by the High Court, or the Supreme Court, unless it was dealt with by the Tribunal itself. A perusal of the order passed by the Tribunal discloses that several contentions urged on behalf of the petitioner were taken into account, and they were dealt with extensively. From the order, it does not appear that the ground of financial incapacity or inability was not dealt with by the Tribunal, obviously because it was not pressed. The discussion was undertaken mostly on the contentions, touching upon the legality, or prima facie case. In that view of the matter, we recall the order dated 9-1-2014, passed in C.E.A. No. 48 of 2014, for the exclusive purpose of paving the way for the petitioner to urge the ground of their financial weakness, or inability, before the Tribunal; set aside the order under appeal, and remand the matter to the Tribunal for fresh consideration and disposal only for the limited aspect, referred to above. This order shall not be construed as expressing any opinion on the findings recorded by the Tribunal on other aspects. We request the Tribunal to consider the feasibility of passing the orders, after remand, within a period of six weeks from the date of receipt of a copy of this order. In the meanwhile, the department shall not take any coercive steps to recover the amounts involved from the petitioner.