2013 (11) TMI 301 - HC - Service Tax

Recovery Notice issued Service tax, penalty and interest Held that - Relying upon LARSEN & TOUBRO LTD & OTHERS Versus UNION OF INDIA AND OTHERS 2013 (2) TMI 188 - BOMBAY HIGH COURT - The Commissioner of Central Excise (Appeals) directed to dispose of the stay application.

Summary

Issues:
1. Recovery notice issued during pendency of appeal and stay application.
2. Validity of circular mandating initiation of recovery proceedings.
3. Direction to dispose of stay application within a specified period.

Analysis:
1. The judgment addresses the issuance of a recovery notice demanding service tax, penalty, and interest while an appeal against an order of adjudication and a stay application are pending before the Commissioner of Central Excise (Appeals). The recovery notice was issued relying on a circular of the Central Board of Central Excise and Customs dated 1 January 2013. The Court refers to a previous judgment in Larsen and Toubro Limited v. Union of India, where it was held that recovery proceedings cannot be initiated if an assessee has filed an application for stay, which remains pending for reasons beyond the control of the assessee. However, if the stay application remains pending for an unreasonable period due to the default or improper conduct of the assessee, recovery proceedings can be initiated.

2. In light of the above, the Court directed the Commissioner of Central Excise (Appeals) to dispose of the stay application within four weeks from the date of the order. It further stated that no coercive steps should be taken in pursuance of the recovery notice until the stay application is decided. The Court emphasized that the law laid down in the Larsen & Toubro Limited case would bind all Commissioners of Central Excise, Service Tax, and Customs. The controlling authorities within the State were instructed to issue necessary directions to ensure compliance with the Court's judgment, as petitions had been filed repeatedly regarding coercive recovery actions taken by the Revenue without disposing of stay applications, despite no fault or delay on the part of the assessee.

3. The petition was disposed of with no order as to costs, concluding the Court's decision on the matter. The judgment aimed to provide clarity on the application of recovery proceedings during the pendency of appeals and stay applications, emphasizing the need for timely disposal of such applications to prevent coercive actions by the Revenue authorities.