2019 (2) TMI 1746 - HC - Central Excise

Maintainability of appeal - time limitation - Section 85 of Finance Act, 1994 to be read with Section 35 F of the Central Excise Act, 1944 - HELD THAT - An appeal has been preferred before Commissioner Appeals), Central Excise Service Tax, Ranchi against the Order-in-Original and also looking to the fact that 7.5 % of the tax and penalty has already been deposited by the petitioner, no further recovery can be made by the respondents so long as the appeal is pending before the Commissioner (Appeals). Even the circular dated 16th September, 2014, which is at Annexure 8 to the memo of this writ petition, also reveals that unless appeal is finally decided in favour of the Union of India, rest of the amount other than 7.5.% or 10%, subject to limit of 10 crores, could not be recovered. Petition disposed off.

Summary

Issues:
Quashing of Notice under Section 87 of the Finance Act, 1994 and related Orders/Notices | Timeliness of appeal under Section 85 of Finance Act, 1994 | Deposit of necessary amount | Recovery during pendency of appeal | Suspension of execution of garnishee orders

Analysis:
The petitioner sought to quash a Notice under Section 87 of the Finance Act, 1994, along with other related Notices and Orders, arguing that the Order-in-Original was served for the first time during a court proceeding in January 2019. The petitioner contended that the appeal filed within the limitation period under Section 85 of the Finance Act, 1994, along with the deposit of 7.5% of the assessed tax and penalty, was valid. The petitioner also referenced a circular limiting further recovery during the appeal process. On the other hand, the respondents claimed that the Order-in-Original was served earlier, rendering the appeal time-barred, leading to garnishee orders being issued.

The court considered the arguments from both sides and noted that an appeal had indeed been filed before the Commissioner (Appeals), Central Excise & Service Tax, Ranchi, and that the required deposit had been made by the petitioner. Given these circumstances, the court ruled that no further recovery could be made by the respondents while the appeal was pending. The court also referred to a circular stating that unless the appeal was decided in favor of the Union of India, only a limited percentage of the amount could be recovered.

Consequently, the court decided to suspend the execution of the garnishee orders during the appeal's pendency, ensuring that the suspension would continue until a decision was reached on the appeal. If the appeal favored the Union of India, the suspended orders would automatically be revived. With this direction, the court disposed of the writ petition.