2021 (3) TMI 838 - HC - Service Tax

Recovery of excess pre-deposit made - pendency of appeal where the assessee demonstrates proof of payment of 7.5% or 10% as may be applicable - Section 35F of the Central Excise Act, 1944 - HELD THAT - It is only a technical contention taken by the petitioner. In light of the order passed by the appellate authority on the application for condonation of delay in the appeal, whereby the appellate authority has rejected the assertion of the Department as regards delivery of notice on 30.10.2019 as the notice was not in requisite Form i.e., ST-4, it is not open for this Court to enter into the question of appeal having been filed beyond the period of limitation and hence permit the recovery. If that were to be so and appeal was presented within the period of limitation, as noticed by the appellate authority, the petitioner was entitled to the benefit of prohibition of recovery from the date of institution of appeal which would extend to prohibition of any recovery subsequent to 08.01.2021, which would include prohibition of Citi Bank making payment to the Department Thus, recovery of a sum of ₹ 2,52,85,310/- made as per the Demand Draft bearing No.620628 favouring the Principal Commissioner of Central Tax, GST Bangalore East Commissionerate , dated 11.01.2021 referred to at Annexure-J, being illegal, such recovery is set aside while observing that any further action for recovery is to be made only in terms of Paragraph No.4.3 of the Circular dated 16.09.2014 - petition disposed off.

Summary

Issues:
1. Recovery notice validity during the pendency of appeal.
2. Applicability of circulars on coercive recovery actions.
3. Timing of recovery notice issuance and effectuation.
4. Benefit of prohibition of further proceedings during appeal period.
5. Recovery legality and subsequent actions.

Issue 1: Recovery notice validity during the pendency of appeal
The petitioner sought to quash a recovery notice dated 09.12.2020 and a letter dated 12.10.2020 issued by the 3rd respondent. The petitioner argued that no coercive action should be taken during the appeal's pendency, as evidenced by Circulars dated 16.09.2014 and 10.03.2017. The revenue contended that the recovery notice was sent before the appeal was filed, challenging the petitioner's right to benefit from the appeal's prohibition of further proceedings.

Issue 2: Applicability of circulars on coercive recovery actions
The petitioner relied on Circulars dated 16.09.2014 and 10.03.2017 to support their claim that no recovery action should be taken during the appeal process if the required pre-deposit is made. The circulars outlined the conditions for prohibiting coercive measures until the case's disposal by the Tribunal, emphasizing the importance of proof of payment and appeal memo submission.

Issue 3: Timing of recovery notice issuance and effectuation
The recovery notice was sent on 09.12.2020, but the actual recovery was executed on 11.01.2021. The petitioner argued that the recovery notice's timing, before the appeal was filed, did not negate their entitlement to the prohibition of further proceedings once the appeal was instituted on 08.01.2021.

Issue 4: Benefit of prohibition of further proceedings during appeal period
The petitioner contended that despite delays in communication and effectuation, the appeal was filed within the stipulated time. The appellate authority acknowledged the timely appeal filing, rejecting the Department's assertion regarding the notice delivery. The petitioner claimed entitlement to the benefit of prohibition of recovery from the appeal's institution date, extending to any subsequent recovery attempts.

Issue 5: Recovery legality and subsequent actions
The recovery of a specific sum was deemed illegal as it occurred after the appeal was presented, violating the Circular's guidelines. The Court set aside the recovery, directing any further actions to adhere to the Circular's provisions. The judgment ordered the refund of the recovery amount within four weeks from the order's release, concluding the petition's disposition.

The judgment clarified the legal implications surrounding recovery actions during the pendency of appeals, emphasizing compliance with Circular directives and the timing of recovery notices in relation to appeal filings. It highlighted the importance of procedural adherence and the entitlement to the benefit of prohibition of further proceedings once an appeal is instituted within the prescribed timeline. The Court's decision to set aside the recovery and mandate refunds underscored the significance of following established legal procedures and circular guidelines in such matters.