2012 (11) TMI 204 - AT - Central Excise

Stay - as interim stay of recovery - quantification of demand - Held that - Commissioner (Appeals) should have required the original authority to quantify the revised demand. - Range Superintendent appears to have, on his own accord, done the exercise of requantification of duty. The aforesaid letter was issued to demand such duty. After considering all aspects of this case, the demand worked out by the Superintendent without concurrence of the original authority should not be enforced during the pendency of this appeal. In this view of the matter, the prayer for interim stay of recovery is granted.

Summary

Issues:
1. Ad interim stay of recovery of duty amount
2. Lack of show cause notice before re-quantification of demand
3. Authority to quantify revised demand
4. Enforcement of demand without concurrence of original authority

Ad Interim Stay of Recovery of Duty Amount:
The appellant sought an ad interim stay of recovery of an amount of Rs.3,70,927/- quantified by the Central Excise Range Superintendent without any show cause notice. The appellant argued that the demand was unsustainable in law as it was not preceded by any show cause notice. The learned Superintendent (AR) opposed the application, stating that the re-quantification of duty was done in accordance with the order passed by the learned Commissioner (Appeals). However, the Tribunal held that the demand worked out by the Superintendent without concurrence of the original authority should not be enforced during the appeal's pendency. Consequently, the prayer for interim stay of recovery was granted.

Lack of Show Cause Notice Before Re-Quantification of Demand:
The appellant contended that the demand re-quantified by the Superintendent was unsustainable as it was not preceded by any show cause notice. The Superintendent had re-quantified the demand without the original authority (the Additional Commissioner) quantifying the revised demand, which should have been the norm. The Tribunal noted that the original authority had initially demanded duty and education cess totaling nearly Rs.26 Lakhs, which was modified by the learned Commissioner (Appeals) without quantifying the revised demand. The Tribunal held that the demand worked out by the Superintendent without concurrence of the original authority should not be enforced during the appeal's pendency.

Authority to Quantify Revised Demand:
The Tribunal observed that in the normal course, the learned Commissioner (Appeals) should have required the original authority to quantify the revised demand. However, in this case, the Range Superintendent had, on his own accord, re-quantified the duty demand without the concurrence of the original authority. The Tribunal found that the lack of concurrence from the original authority rendered the demand unsustainable in law. Therefore, the Tribunal granted an interim stay of recovery of the demanded amount.

Enforcement of Demand Without Concurrence of Original Authority:
The Tribunal emphasized that the demand worked out by the Superintendent without the concurrence of the original authority should not be enforced during the pendency of the appeal. The Tribunal held that in this particular case, the Superintendent had issued the demand letter without the required concurrence, making the demand legally questionable. As a result, the Tribunal granted the appellant's prayer for an interim stay of recovery of the demanded amount.