INDIAN OIL CORPORATION LTD. Vs. CCE

JUDGEMENT

(1.) THE appellants are a Public Sector Undertaking, who are required to obtain clearance from the High Power Committee for prosecuting the appeal. It is submitted that their application for such clearance is pending before the Committee since 26.12.05. The appeal is directed against demand of duty of over Rs. 12 Crores for the period April' 89 to December' 93 and April' 94 to Feb' 99. It is accompanied by an application for waiver of predeposit and stay of recovery under Section 35F of the Central Excise Act and the said application is also pending. Today, we have before us an application of the appellants seeking ad -interim stay of recovery till disposal of the above -said application. Apparently, this application has been filed in the wake of a demand notice dated 4.1.06 issued by the jurisdictional Asst. Commissioner. This notice directs the party to pay -up the above duty or, in the alternative, produce a stay order from this Tribunal, failing which, it is warned, action will be initiated for recovery of the amount under Sections 11 and 142 of the Customs Act [as made applicable to like matters under the Central Excise Act] immediately after 28.2.2006 (tomorrow).

(2.) MOVING the application for interim stay, ld. Sr. Advocate Shri N. Venkatraman (assisted by his Junior) submits that the above demand notice is contrary to the Board's instructions contained in Circular No. 316/32/97 -Cx dt. 2.6.97. This circular, which we have perused, laid down that the operation of the impugned order should be suspended till the Committee on Disputes resolved the dispute or gave clearance to the litigation. The circular clarified that the dues could not be enforced while the reference is pending before COD. Upon receipt of the above demand notice, ld. counsel submits, the appellants made a representation to the Commissioner of Central Excise, Chennai -I as well as the Chief Commissioner of Central Excise, Chennai to hold back recovery proceedings in view of the Board's instructions. This representation was submitted on 23.2.06. It is stated that there is no response to this representation. It is in these circumstances that ld. counsel prays for intervention of the Tribunal under Rules 40 and 41 of the CESTAT (Procedure) Rules, 1982.

(3.) ACCORDING to ld. counsel, this Tribunal has ample power to grant ad -interim stay of recovery in the aforesaid peculiar circumstances, for the ends of justice. In this connection, reliance is placed on UOI v. Paras Laminates (P) Ltd. , wherein it was ruled by the apex court that this Tribunal had all those incidental and ancillary powers which were necessary to make fully effective the express grant of statutory powers. It is submitted by ld. counsel that, under Section 35F of the Central Excise Act, we have power to grant waiver and stay in a pending appeal and further that it is necessary to effectuate that power by granting interim stay of recovery, which is only incidental and ancillary to the power expressly granted to us under Section 35F ibid. We have heard ld. SDR also, who submits that it may not be correct to say that the Tribunal can grant ad -interim stay of recovery in an appeal which is yet to be maintainable for want of clearance from the High Powered Committee. It is also pointed out that, if applications of this kind are entertained, the Tribunal is most likely to be flooded with such applications, a situation which according to ld. SDR, should as far as possible be avoided.