2013 (9) TMI 778 - HC - Central Excise

Assessee filed an application for stay of the order - Tribunal granted stay of recovery vide Stay Order - subject to the assessee making a pre-deposit of 1/5th of the total amount of duty - Held that - While the Tribunal may have the power to extend the stay, that power should be exercised in a reasonable or proper manner and on consideration. There is no indication in the impugned order that the requirements have been kept in mind or has been examined before extending the stay and also the need for safeguarding the interest of the revenue and for balancing the interest of the revenue and the assessee - order of the Tribunal is not sustainable - Tribunal could not have extended the stay order without recording the reasons and noticing the circumstances etc - The impugned order of the Tribunal is set aside and the matter is remanded to the Tribunal for fresh consideration of the application filed by the assessee and to pass orders on merits and on relevant consideration as is indicated in the 2nd proviso to Section 35C(2A) - Following decision of COMMISSIONER OF CENTRAL EXCISE, MANGALORE vs- INDIAN OIL CORPORATION 2010 (8) TMI 212 - KARNATAKA HIGH COURT - Decided in favour of Revenue.

Summary

Issues:
1. Extension of interim stay order by the Tribunal beyond six months without reasons.
2. Utilization of Cenvat Credit by the assessee for payment of duty.
3. Appeal against the order of the Assessing Authority.
4. Partial allowance of the appeal by the Appellate Authority.
5. Granting of waiver and stay of recovery by the Tribunal.
6. Legality of extending the stay order indefinitely without justification.
7. Compliance with legal requirements in extending the stay order by the Tribunal.

Issue 1: Extension of interim stay order by the Tribunal beyond six months without reasons:
The High Court examined whether the Tribunal could have extended the interim stay order of recovery of amounts due beyond six months without recording reasons. The Court noted that the Tribunal had extended the stay order indefinitely without justification, which was challenged by the revenue. The Court emphasized that the power to extend the stay should be exercised reasonably and with proper consideration, ensuring the interests of both the revenue and the assessee are balanced. It was held that the Tribunal's order lacked sustainability as it did not provide reasons for the extension, leading to the setting aside of the order and remanding the matter for fresh consideration.

Issue 2: Utilization of Cenvat Credit by the assessee for payment of duty:
The case involved the assessee, a manufacturer of spring leaves, challenging the order of the Assessing Authority regarding the utilization of Cenvat Credit for payment of defaulted duty. The Assessing Authority disallowed the utilization of Cenvat Credit and demanded recovery of the amount along with interest and penalties. The Appellate Authority partly allowed the appeal, affirming the duty demanded but setting aside certain penalties imposed under the Rules.

Issue 3: Appeal against the order of the Assessing Authority:
The respondent/assessee appealed against the order of the Assessing Authority, challenging the disallowance of Cenvat Credit utilization and the demand raised for the amount. The appeal was partly allowed by the Appellate Authority, modifying the penalties imposed while affirming the duty demanded.

Issue 4: Partial allowance of the appeal by the Appellate Authority:
The Appellate Authority partly allowed the appeal filed by the assessee, affirming the duty demanded while setting aside certain penalties imposed under the Rules. This decision was a part of the background leading to further legal proceedings.

Issue 5: Granting of waiver and stay of recovery by the Tribunal:
The assessee appealed to the Tribunal seeking waiver of the deposit and a stay of the recovery of the amount. The Tribunal granted full waiver and stayed the recovery, with the interim stay order being extended further on the application filed by the assessee. The Tribunal's decision to extend the stay order indefinitely without proper justification was challenged in the present appeal.

Issue 6: Legality of extending the stay order indefinitely without justification:
The High Court scrutinized the legality of the Tribunal's decision to extend the stay order indefinitely without providing reasons or examining the circumstances. The Court emphasized that the power to extend the stay should be exercised in a reasonable and proper manner, considering the interests of both the revenue and the assessee. The lack of justification in the Tribunal's order led to the appeal being allowed, setting aside the Tribunal's decision and remanding the matter for fresh consideration.

Issue 7: Compliance with legal requirements in extending the stay order by the Tribunal:
The Court highlighted the importance of the Tribunal complying with legal requirements when extending a stay order, emphasizing the need for proper reasoning and consideration. The Tribunal was directed to pass orders on the application filed by the assessee within a specified timeline, ensuring that the interests of both parties are duly considered. The revenue was restrained from proceeding with the recovery during the specified period, allowing for further legal recourse if deemed necessary after the specified timeline.