2013 (6) TMI 270 - HC - Central Excise

Recovery proceedings on expiry of the Cooling period with reference to Ex.P5 Circular dated 01.01.2013 Held that - As appeal has been preferred by the petitioner along with I.A. for stay, which are pending before the 4th respondent, this Court finds it fit and proper to have the matter considered and finalised by the Appellate authority in accordance with the relevant provisions of law. Tribunal/4th respondent is directed to pass appropriate orders in respect of the Stay application filed by the Petitioner as expeditiously as possible and coercive proceedings, if any, shall be kept in abeyance till such time.

Summary

Issues:
Challenge to order requiring payment under Cenvat Credit Rules 2004 and Section 11A of Central Excise Act, 1944; Legality of Circular facilitating recovery proceedings; Interception of Circular by various High Courts; Stay on coercive steps pending appeal before Appellate Tribunal.

Analysis:
The petitioner, a Tyre Manufacturing Unit, challenged an order demanding payment of a substantial sum under Rule 14 of Cenvat Credit Rules 2004 and Section 11A of Central Excise Act, 1944. Additionally, a penalty was imposed on the petitioner. The petitioner approached the Tribunal seeking a stay on the order. However, coercive measures were initiated by the respondents based on a Circular dated 01.01.2013, allowing recovery proceedings after a specified 'Cooling period', which was contested by the petitioner.

The petitioner's counsel argued that the Circular was legally flawed and had been challenged in various High Courts, including Andhra Pradesh, Chennai, and Rajasthan, where interim orders of stay had been granted. The Court heard arguments from both sides and acknowledged the pendency of the petitioner's appeal and stay application before the Appellate Tribunal. Considering that the Circular had been stayed by other High Courts, the Court deemed it appropriate for the Appellate authority to adjudicate the matter in accordance with the law.

Consequently, the Court directed the Appellate authority to expeditiously decide on the petitioner's stay application filed under Section 35F of the Central Excise and Salt Act, 1944, along with the appeal filed under Section 35B of the Act. It was ordered that coercive actions, if any, should be put on hold until a decision is reached. The petitioner was instructed to provide a copy of the judgment and the writ petition to the Appellate authority for further proceedings. The writ petition was disposed of, with the resolution of the matter left to the Appellate Tribunal.