2014 (9) TMI 806 - AT - Central Excise

Recovery of amount due - stay application pending before tribunal - Appropriation of an amount - Held that - The sub-section which was introduced in terrorem cannot be construed as punishing the assessees for matters which may be completely beyond their control. For example, many of the Tribunals are not constituted and it is not possible for such Tribunals to dispose of matters. Occasionally by reason of other administrative exigencies for which the assessee cannot be held liable, the stay applications are not disposed within the time specified. The reasoning of the Tribunal expressed in the impugned order and as expressed in the Larger Bench matter, namely, IPCL v. Commissioner of Central Excise, Vadodara (2004 (6) TMI 52 - CESTAT, NEW DELHI) cannot be faulted. However we should not be understood as holding that any latitude is given to the Tribunal to extend the period of stay except on good cause and only if the Tribunal is satisfied that the matter could not be heard and disposed of by reason of the fault of the Tribunal for reasons not attributable to the assessee. - Decided against Revenue.

Issues involved:
Appropriation of amount by adjudicating authority against confirmed demand, validity of stay orders issued prior to the amendment under Section 35C of CEA, interpretation of sub-section(2A) of Section 35C of the Central Excise Act, 1944, impact of the stay orders on the disposal of the appeal, justification for appropriation of amount, correctness of the order passed by the first appellate authority.

Analysis:

Issue 1: Appropriation of amount by adjudicating authority against confirmed demand
The issue in this case revolves around the adjudicating authority's decision to appropriate an amount of Rs. 3,53,24,189 against confirmed demands raised against the respondent. The respondent argued that the appeals were still pending before the Tribunal against the impugned orders of the Commissioner. The first appellate authority found that the conditional stay orders were issued by the Hon'ble CESTAT/CEGAT and compliance with these orders resulted in further recovery of dues being subjected to stay. The respondent contended that the stay orders issued in their case pertained to a period prior to the amendment introduced in the statute and should not be applicable. The Hon'ble Tribunal's decision in a similar case supported the validity of stay orders issued before the amendment, which was affirmed by the Supreme Court. The Tribunal upheld the view that the amendment did not affect stay orders passed before its enforcement and did not limit the Tribunal's power to grant stay exceeding six months.

Issue 2: Validity of stay orders issued prior to the amendment under Section 35C of CEA
The crucial aspect of this case is the interpretation of the stay orders issued before the amendment under Section 35C of CEA. The Hon'ble Supreme Court clarified that the sub-section introduced aimed to prevent assessees from unduly prolonging interim orders to the detriment of revenue and other pending matters. The Tribunal's decision, supported by a Larger Bench, emphasized that the amendment did not penalize assessees for circumstances beyond their control, such as delays in disposal due to tribunal constitution issues or administrative exigencies. The Tribunal's discretion to extend stay periods was subject to good cause and satisfaction that delays were not attributable to the assessee.

Issue 3: Interpretation of sub-section(2A) of Section 35C of the Central Excise Act, 1944
The sub-section(2A) of Section 35C introduced by the Finance Act, 2002, aimed to expedite the disposal of appeals and prevent undue delays caused by interim stay orders. The provision mandated disposal of appeals within a specified period from the date of filing, with automatic vacation of stay orders if the appeal was not resolved within the stipulated timeframe. The intent was to prevent assessees from using stay orders to indefinitely delay proceedings, ensuring timely resolution and revenue realization.

Issue 4: Impact of the stay orders on the disposal of the appeal
The stay orders issued prior to the amendment were deemed valid until the disposal of the appeal, as clarified by the Hon'ble Supreme Court. The Tribunal's decision and the Larger Bench's ruling affirmed the validity of pre-amendment stay orders and the Tribunal's authority to extend stay periods beyond six months if justified. The focus was on balancing the rights of assessees with the need for timely resolution to prevent revenue loss and ensure effective adjudication.

Issue 5: Justification for appropriation of amount
The Tribunal found no justification for the appropriation of the amount confirmed under the impugned order, given the validity of the stay orders issued before the amendment. The Tribunal emphasized that no recovery or appropriation could be made until the stay orders were modified or set aside by the Tribunal or a higher appellate forum. The department was advised to approach the proper forum if seeking modification or reversal of the stay orders, as established by the settled legal principles and the apex court's decision.

Issue 6: Correctness of the order passed by the first appellate authority
The first appellate authority's decision to set aside the order of appropriation and sanction the rebate amount was deemed correct by the Tribunal. The appeals against the confirmation of demands were pending before the Tribunal, where unconditional waiver had been granted to the assessee. Consequently, the Tribunal upheld the first appellate authority's order, finding no merit in the Revenue's appeal and rejecting it based on the considered view that the impugned order was justified.

This detailed analysis of the judgment highlights the legal intricacies surrounding the appropriation of amounts, the validity of stay orders, and the interpretation of relevant statutory provisions, providing a comprehensive overview of the case's key issues and the Tribunal's reasoned decision.

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