2013 (5) TMI 377 - HC - Central Excise

Initiation of recovery proceedings - Circular dated 1.1.2013 - Interlocutory Application is pending by the Appellate Authority, no order passed either directing stay or refusing stay. - Recovery to be initiated 30 days after the filing of appeal, if no stay is granted or after the disposal of stay petition in accordance with the conditions of stay, if any specified, whichever is earlier. Held that - Petitioner, not being the cause for the Appellate Authority not to hear and pass orders on interlocutory applications. The UOI must refrain from initiating recovery proceedings in respect of the amounts due in terms of the order impugned in the appeals until final orders are passed in appeals or orders on interlocutory applications for stay. Thus, these petitions are disposed of with a direction to the Appellate Authority to consider and pass orders on the interlocutory applications for stay as expeditiously as possible and until such time, the third respondent is refrained from initiating recovery proceedings.

Summary

Issues:
1. Appellant aggrieved by three assessment orders and pending stay applications.
2. Third respondent issued a demand notice based on a circular.
3. Dispute regarding the jurisdiction to issue the demand notice without stay orders.
4. Interpretation of Circular Annexure C by the Central Board of Excise and Customs.
5. Comparison with a similar case before the High Court of Bombay.
6. Request for disposal of appeals and stay applications by the Commissioner.

Analysis:
1. The petitioner, aggrieved by three assessment orders, filed appeals along with stay applications. The Appellate Authority neither granted nor refused stay, leaving the applications pending.
2. The third respondent issued a demand notice based on a Circular dated 01.01.2013 for recovery of the amounts subject to the appeals, leading to this petition challenging the Circular and Demand Notice.
3. The petitioner argued that the third respondent lacked jurisdiction to issue the Demand Notice as the Circular specified recovery after 30 days of appeal filing if no stay was granted or after stay petition disposal, which had not occurred due to pending stay applications.
4. The respondent Revenue contended that the Demand Notice was in line with the Circular's directions from the Central Board of Excise and Customs, suggesting the petitioner should have sought stay orders before questioning the demand.
5. The Court analyzed the Circular's directions, emphasizing that recovery could only proceed if no stay was granted or after stay petition disposal, which had not happened in this case due to pending stay applications.
6. Referring to a similar case before the High Court of Bombay, it was concluded that recovery proceedings cannot apply when an application for stay is pending beyond a reasonable period not due to the assessee's fault.

Judgment:
The Court directed the Appellate Authority to expedite the consideration and orders on the interlocutory stay applications. Until then, the third respondent was restrained from initiating recovery proceedings. The Union of India was advised to refrain from recovery until final orders on the appeals or stay applications were passed, ensuring no loss of revenue due to delayed hearings.