CX - It was not proper on part of Revenue to enforce recovery by appropriating rebate sanctioned against demand confirmed when stay had been granted by Tribunal - DC has shown contempt to orders of Tribunal – Registry directed to forward order to CBEC Chairman - appeal allowed: CESTAT
By TIOL News Service
MUMBAI, DEC 18, 2012: THE New Year 2013 should not be that good for the Deputy Commissioner, Central Excise, Raigad as he is in the dock - the CESTAT has sought appropriate action against him.
The appellant filed 10 rebate claims totally amounting to Rs.42,34,172/-. The Deputy Commissioner, Central Excise sanctioned the same but appropriated an amount of Rs. 38,63,600/- towards confirmed demands of Rs.24,36,000/- and Rs.14,27,000/- pending against the appellants, vide order dated 27/12/2011.
The appellant had informed the lower authorities that in respect of demand of Rs. 24.36 lakhs they had obtained stay from the Tribunal vide order dated 24/01/2011 and with respect to the demand of Rs.14.27 lakhs their appeals and stay applications are pending and an order granting waiver of pre-deposit of entire amount was expected. Incidentally, in respect of the demand of Rs.14.27 lakhs the CESTAT vide its order dated 05/01/12 granted unconditional waiver of pre-deposit of dues adjudged.
The appellant preferred an appeal before the lower appellate authority, who vide his order dated 01.05.2012 rejected the appeal.
Hence, the appellant is before the CESTAT.
It is submitted that in view of the factual position, as mentioned, recovery effected by the Revenue authorities are in complete disregard to the orders of the Tribunal and the appellant should be paid back whatever recovery has been made. Decision of the Allahabad High Court in the case of Galaxy Indo Fab. Ltd., Vs. UOI, - (2010-TIOL-234-HC-ALL-CX) is also adverted by the appellant in this regard.
The Revenue representative defended the action of the lower authorities.
The Bench after considering the submissions observed -
"6. As regards the appropriation of Rs. 24.36 lakhs is concerned, there was a categorical order by this Tribunal vide Order No.S/98/11/EB/C-II dated 24/01/2011 granting stay from the recovery of the demand during the pendency of the appeal. Therefore, it was highly inappropriate on the part of the revenue authorities to enforce recovery when the stay had been granted by this Tribunal. The Assistant Commissioner has shown complete disregard and contempt to the orders of this Tribunal. As regards the appropriation of Rs.14.27 lakhs is concerned, the appellant's stay application was pending before this Tribunal. In a number of judicial pronouncements, it has been held that when a stay application is pending before the Tribunal, no coercive steps should be taken to recover the demands. The Hon'ble Allahadad High Court, in the case of Galaxy Indo Gab cited supra, held that recovery/demand notice during pendency of stay cannot be undertaken by the Revenue authorities especially when the stay was not challenged and the said stay order was binding on the revenue authorities. The refusal by revenue authorities to pay respect to the order of the Tribunal is violation of judicial discipline and in the said case, the Hon'ble High Court of Allahabad imposed on the Assistant Commissioner an exemplary cost of Rs. 1.00 lakh with the warning to said officer not to act in haste and arbitrarily in future. Revenue's appeal against the said order was dismissed by the Hon'ble apex court. The ratio of the above judgments applies squarely to the facts of the present case. Accordingly, I direct the jurisdictional Assistant/Deputy Commissioner to refund forthwith the recovery made from the appellant. Registry is directed to forward a copy of this order to the Chairman, Central Board of Excise & Customs, New Delhi for appropriate action. Thus, the appeals are allowed with consequential relief."
In passing: Hopefully the AR and the Commissioner(A) have also got the message!
(See 2012-TIOL-1871-CESTAT-MUM)
