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2019 (8) TMI 83 - HC - Central ExciseRecovery during pendency of litigation - case of petitioner is that Section 35 of CE Act has been amended on and with effect from 06.08.2014 and post amendment, the concept of seeking stay of the order under challenge before CESTAT was done away with - HELD THAT - As the SOD dated 04.07.2018 bearing reference No.06/2018-CE(ADC) has been referred to separately, but in conjunction with five orders in original, there is lack of clarity as to whether this SOD refers to these five orders in original or is independent of the same - with regard to amendment to Section 35 of CE Act, on and with effect from 06.08.2014, the aforesaid circular dated 16.09.2014 and paragraph 20.2 of the said circular (extracted and reproduced supra), there is no disputation. To the extent that the impugned communication calls for submission of documents pertaining to the aforesaid five orders in appeal, it is clearly in breach of the obtaining position, where the matter is pending before CESTAT - this Court deems it appropriate to set aside the impugned communication insofar as it relates to five orders in appeal, all dated 08.03.2018, made in Order in Appeal Nos.47/2018 SLM-CEX, 48/2018 SLM-CEX, 49/2018 SLMCEX, 50/2018 SLM-CEX and 51/2018 SLM-CEX, preserving the rights of the respondent to issue communication afresh, if any SOD or other documents are required with regard to periods not covered by the aforesaid five orders which are now pending before CESTAT. Petition allowed in part.
Issues:
Challenge to communication dated 17.05.2018 regarding submissions related to Central Excise Act, 1944 during pendency of appeals before CESTAT. Analysis: The writ petitioner initiated proceedings under the Central Excise Act, 1944 for the period between February 2013 and April 2016, resulting in five original orders. Subsequently, statutory appeals were filed against these orders, which were disposed of by the Appellate Authority on 08.03.2018. Following this, the appeals were further taken to the Customs Excise and Service Tax Appellate Tribunal (CESTAT) on 25.06.2019, where they are currently pending. However, during the pendency of these appeals before CESTAT, a communication dated 17.05.2018 was issued, prompting the writ petition challenging its validity. The writ petitioner argued that Section 35 of the Central Excise Act was amended on 06.08.2014, eliminating the provision for seeking stay of orders under challenge before CESTAT. Referring to a master circular dated 10.03.2017, the petitioner highlighted paragraph 20.2, emphasizing the mandatory pre-deposit requirements for appeals before the Commissioner (Appeals) or CESTAT. The impugned communication specifically mentioned the five orders dated 08.03.2018 made by the Appellate Authority, which are currently under consideration by CESTAT. The Revenue Counsel pointed out that the impugned communication also made reference to a Statement of Demand (SOD) dated 04.07.2018, creating ambiguity regarding its connection to the five original orders. Despite this, the Court noted that the communication's request for documents related to the five orders under appeal contravened the amended provisions of Section 35 of the CE Act, which prohibit such actions during the pendency of appeals before CESTAT. Consequently, the Court set aside the communication in relation to the five orders dated 08.03.2018, preserving the respondent's right to issue a fresh communication if documents are required for periods not covered by the pending appeals before CESTAT. In conclusion, the writ petition was partly allowed with the specified directions, and no costs were imposed. The connected Miscellaneous Petition was closed, bringing the matter to a resolution.
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