2013 (11) TMI 592 - HC - Central Excise

Recovery of dues after expiry of waiver order according to Section 35-C (2A) Unconditional Stay granted Held that - The unconditional stay would have operated only w.e.f. 8.4.2013 for a period of six months, which has expired, the order of unconditional stay would not be operative in favour of the assessee Decided in favour of revenue - The respondent may persuade the Tribunal to decide the appeal expeditiously.

Summary

Issues involved:
1. Granting of unconditional stay order by Customs, Excise & Service Tax Appellate Tribunal.
2. Justification of granting unconditional stay based on a previous order.
3. Sustainability of demand against a specific party.

Analysis:

1. The appellant contended that the Customs, Excise & Service Tax Appellate Tribunal made a legal error by granting an unconditional stay order indefinitely. The appellant argued that the stay order from 15.11.2011 had expired due to the insertion of sub-section (2A) of Section 35-C by Section 140 of the Finance Act, 2002. The appellant cited a judgment by the Court in Commissioner, Customs, Central Excise & Service Tax vs. M/s J.P. Transformers, where it was directed to decide the appeal expeditiously within six months. The Court allowed the waiver of pre-deposit to continue only for six months from the last extension. The Tribunal was criticized for relying on an expired order to grant an unconditional stay indefinitely.

2. The Court admitted the appeal on the question of law regarding the justification of the Customs, Excise & Service Tax Appellate Tribunal in granting unconditional stay based on a previous order. The issue raised was whether the Tribunal was justified in applying the ratio of a stay order dated 15.11.11 to the present case. Additionally, the Court questioned the Tribunal's decision regarding the sustainability of demand against a specific party, M/s D.P. Garg & Co., in relation to other units. The Tribunal was questioned for ignoring evidence regarding financial dependability, management control, and common identity in the eyes of customers.

3. As an interim measure, the Court directed that the unconditional stay order, which had been in effect since 8.4.2013 for a period of six months, had expired. Therefore, the order of unconditional stay would not be operative in favor of the respondent. The respondent was advised to pursue the Tribunal to expedite the appeal process for a final decision.