2013 (2) TMI 216 - HC - Service Tax

Notice for recovery - Challenge the Circular No. 967/01/2013-CX dated 1.1.2013 - Held that - An appeal has been filed before the CESTAT along with the stay application, but no hearing has been granted so far & in the meanwhile, recovery notice has been issued on 9.1.2013. An assessee who moves an application for waiver and is diligent in pursuing the application cannot be blamed for the inability of the appellate forum to dispose of the stay application In view of the above, post the matter on 31.01.2013. There will be an order of interim stay and interim injunction till then. The petitioner is permitted to take steps to implead the CESTAT before which the appeal is pending, as a party respondent, in the meantime.

Summary

Issues: Challenge to Circular No. 967/01/2013-CX and consequential recovery notice

In this judgment, the petitioner challenged Circular No. 967/01/2013-CX dated 1.1.2013 and the recovery notice issued on 9.1.2013. The petitioner had filed an appeal before the Customs, Excise and Service Tax Appellate Tribunal along with a stay application. However, despite the pending appeal and stay application, a recovery notice was issued, mandating the recovery of the amount within 30 days of filing the appeal. The petitioner argued that the proviso to Section 35-F of the Central Excise Act does not specify any time limit, and therefore, the circular exceeded its provisions.

The court, after hearing arguments from both sides, ordered an interim stay and interim injunction until the matter was further heard on 31.01.2013. The petitioner was also allowed to implead the CESTAT as a party respondent in the case pending before the tribunal. This decision was made to ensure that the petitioner's rights were protected during the ongoing legal proceedings and to prevent any immediate recovery actions based on the challenged circular and recovery notice.