2013 (5) TMI 1 - HC - Central Excise

Recovery - Irregular availment of CENVAT Credit of Service Tax - demand notice calling upon the petitioner to deposit the amount together with penalty within 10 days during the pendency of the appeal - Held that - As decided in Larsen and Toubro vs. Union of India and Others 2013 (2) TMI 188 - BOMBAY HIGH COURT the provisions contained in the impugned circular dated 1 January 2013 mandating the initiation of recovery proceedings thirty days after the filing of an appeal, if no stay is granted, cannot be applied to an assessee who has filed an application for stay, which has remained pending for reasons beyond the control of the assessee. Thus this petition allowed as demand notice directed to be kept in abeyance until such time the appellate authority passes an order on the interlocutory application filed by the petitioner in the appeal

Summary

Issues:
Petitioner challenging Order-in-Original on CENVAT Credit irregularity, appeal with stay application, respondent issuing demand notice, petitioner seeking writ of mandamus to halt proceedings.

Analysis:
1. The petitioner contested an Order-in-Original assessing irregular CENVAT Credit availed, leading to a penalty and interest. An appeal was lodged with the Commissioner of Central Excise and Service Tax, accompanied by a stay application. Despite the pending appeal and no decision on the stay application, the respondent issued a demand notice for payment. The petitioner duly informed about the pending appeal and stay application to the respondent.

2. Subsequently, the petitioner sent detailed letters to the Commissioner emphasizing the necessity of considering the stay application due to the demand for payment, but received no response. The petitioner's contention is that a later demand notice requiring immediate payment led to the filing of a writ petition seeking a mandamus to prevent further action based on the notice.

3. The petitioner's argument centered on the demand notice issued, compelling them to deposit the sum along with penalties within a specified time frame. This situation prompted the petitioner to seek a writ of mandamus to restrain the respondent from taking any further steps following the notice.

4. The learned Standing Counsel for Central Excise contended that the authorities had the jurisdiction to issue the demand notice. However, reference was made to a judgment of the High Court of Bombay in a case involving Larsen and Toubro vs. Union of India and Others. The judgment highlighted the necessity of not applying recovery proceedings when an application for stay is pending beyond a reasonable period due to reasons beyond the assessee's control.

5. Notably, the petitioner's counsel did not oppose the submission made by the Standing Counsel regarding the application of the judgment from the High Court of Bombay in the present case.

6. Consequently, the Court, considering the observations and legal principles outlined in the judgment referenced, ordered that the demand notice be suspended until the appellate authority decides on the petitioner's stay application. The directive was for the respondent to act in accordance with the order subsequently issued by the Commissioner for Appeals post the decision on the interlocutory application in the appeal.