2019 (9) TMI 393 - AT - Central Excise

Stay on recovery - Mandatory provisions of pre-deposit - section 35F of Central Excise Act, 1944 - HELD THAT - The notice issued to the present applicant is in direct contravention of section 35F of Central Excise Act, 1994 which supplanted the provision for waiver of pre-deposit in section 35C of Central Excise Act, 1944 with effect from 6th August 2014 - In the decision of the Tribunal, though it was the stay arising from the pre-amended provision of section 35C of Central Excise Act, 1944 with attendant limitation on the extent of stay order and not the extant statutorily mandated bar on recovery impugned in section 35F of Central Excise Act, 1944 that was sought to be derailed, the continuance of stay was ordered therein; here it is the statutory bar that is sought to be overruled by the impugned notice. This was no call on the part of the jurisdictional Central Excise authority to substitute his interpretation of a judicial order to nullify the statutory restriction on recovery beyond the amount prescribed therein. This illegal act on the part of a creation of the very same statute is a veritable harassment of the appellant. As the Tribunal, beset by large number of pending litigation, has been led to waste valuable time by this needless, and illegal, initiative on the part of the official, we impose costs of ₹ 5000/- which shall be deposited with the Fund of the National Legal Services Authority within 30 days of receipt of this order - Application disposed off by setting aside the notice of recovery.

Summary

Issues:
1. Interpretation of section 35F of Central Excise Act, 1944 regarding recovery of dues.
2. Application of judicial orders in disputes related to tax revenue.
3. Jurisdictional authority's power to interpret judicial orders.
4. Imposition of costs for wasting Tribunal's time.
5. Recovery of imposed costs.

Analysis:

Issue 1: Interpretation of section 35F of Central Excise Act, 1944 regarding recovery of dues
The judgment deals with a situation where recovery of dues confirmed in an order was stayed under section 35F of the Central Excise Act, 1944. The applicant was issued a notice to deposit the stayed amount for the hearing and disposal of the appeal. The Tribunal found that the notice was in direct contravention of section 35F, which supplants the provision for waiver of pre-deposit in section 35C. It emphasized that the statutory bar on recovery should not be overruled by any interpretation of a judicial order, and such actions constitute harassment of the appellant.

Issue 2: Application of judicial orders in disputes related to tax revenue
The Tribunal referenced a previous case where it was held that judgments of the Supreme Court do not apply to disputes related to tax revenue before appellate authorities under various acts. In this case, the notice issued to the applicant was deemed to be against the provisions of the Central Excise Act, 1944, specifically section 35F. The Tribunal emphasized that the jurisdictional authority should not substitute their interpretation of a judicial order to nullify statutory restrictions on recovery.

Issue 3: Jurisdictional authority's power to interpret judicial orders
The judgment criticized the jurisdictional Central Excise authority for attempting to overrule the statutory bar on recovery beyond the prescribed amount by issuing the impugned notice. It was deemed as an illegal act and a blatant defiance of the law. The Tribunal called for appropriate instructions to be issued by the Chief Commissioner to prevent such occurrences in the future, emphasizing the importance of following statutory provisions.

Issue 4: Imposition of costs for wasting Tribunal's time
Due to the unnecessary and illegal initiative taken by the official, the Tribunal imposed costs of _ 5000/- on the party responsible for wasting valuable time. The costs were to be deposited with the Fund of the National Legal Services Authority within 30 days. The Commissioner of Central Goods and Service Tax was tasked with deciding on the manner of recovering the imposed costs.

Issue 5: Recovery of imposed costs
The judgment concluded by setting aside the notice for recovery, thereby resolving the immediate issue at hand. The costs imposed were to be paid within the specified timeframe, and the responsibility for recovery was delegated to the Commissioner of Central Goods and Service Tax, Kolhapur.

In summary, the judgment addressed the improper interpretation of statutory provisions, the application of judicial orders in tax disputes, the jurisdictional authority's role in following the law, the imposition of costs for wasting Tribunal's time, and the recovery of the imposed costs.