Hindustan Petroleum Corporation Ltd. vs Commissioner of Central Excise

N. Kumar, J.—Normally this court will not interfere with the judgment passed by the Tribunal where the stay order is granted subject to deposit of 50 per cent, of the duty, which is subject matter of the appeal. The question involved in this case is, whether the assessee is liable to pay duty on delivery charges collected by HPCL''s bottling units from the dealers. The said question has been answered by the Tribunal for the earlier years by its order dated October 25, 2005 passed in C. No. V/27/2/15/2004, which is reported in 2006 (113) ECC 187 and the said order has been affirmed by the Supreme Court in its judgment reported in CCE v. Hindustan Petroleum Corporation Ltd. [2007] 213 ELT A116 (SC).

In spite of the law declared by the apex court, the Revenue is raising the said demand and forcing the assessee to prefer the statutory appeal and get the relief before the judicial forum.

When an appeal is filed, the law contemplates deposit of duty and therefore, necessarily the assessee has to seek relief of stay of the said order. The present case is one such case where the stay is granted subject to the condition that 50 per cent, of the duty is paid. In fact, for the subsequent period, on the date the order of stay was passed, which is impugned in this case, the Tribunal allowed the appeal and granted the relief. Certainly, the Tribunal ought to have taken note of the earlier judgment which is affirmed by the apex court, which was rendered on the day the interim stay was granted. It is a discretionary order to exempt them from depositing the duty, which has not been done. Such an attitude of the Government encourages the Department to file the appeals notwithstanding the declaration of the law by the apex court and the High Court cannot be a silent spectator. The interim order of the Tribunal is set aside.

Accordingly, we pass the following order :

ORDER

The appeal is allowed.

The impugned order is hereby set aside.

It is made clear, it, will not act as a precedent in other cases.

The Tribunal shall take up the appeal and decide the case on the merits. The Tribunal shall decide the case on the merits in accordance with the law without anyway getting influenced by any of the observations made by this court in this order but, however, in the light of the judgment passed by it and by the Supreme Court.