Thursday, July 4, 2013

Tribunal had no power to modify stay order which was merged with the order of High Court

Where stay order passed by Tribunal had been challenged before High Court, such order stood merged with order of High Court; thereafter, Tribunal had no power to modify such merged stay order

In the instant case, the Tribunal vide its stay order directed the assessee to make pre-deposit of certain amount and report compliance. Against the said order, the assessee filed writ petition before the High court. The High Court only allowed credit of earlier payments to be taken by the party towards pre-deposit ordered by the Tribunal. Further, the High Court granted four weeks time to deposit any balance amount and submit proof thereof to the Registry of the Tribunal. In these circumstances the assessee again filed a miscellaneous application to the Tribunal seeking modification of the stay order.

The Tribunal rejected the application with following observations:

1) The plea made by assessee in miscellaneous application amounted to a plea for modification of original stay order which had already merged with  the order of High Court;

2) The Tribunal was incompetent to modify the stay order. The assessee had not complied with the time-bound direction of the High Court either. There was neither clear statement of any payments made by the assessee, nor there was any claim of further payments within the prescribed time towards pre-deposit ordered by the Tribunal;

3) In the above scenario, the miscellaneous application was rejected - Choice Precitech India (P.) Ltd. v. Commissioner of Central Excise [2013] 34 194 (Bangalore - CESTAT)