2016 (11) TMI 482 - HC - Central Excise

Recovery - Held that - since the Tribunal is already seized of the matter and the appeal is pending since 2008 and an order of stay has been in force from 2008 and periodically extended, this Court is of the view that pending disposal of the appeal, there cannot be any threat of recovery. Extension of stay - Held that - This Court is also informed that the appeals of the year 2007 are being heard. Since the appeal filed by the petitioner is of the year 2008, it may take sometime for the appeal to be disposed of by the Tribunal. Therefore, ends of justice would be met if an order of stay, granted by the Tribunal and extended from time to time and the last of such extension being 12.8.2015, is continued till the disposal of the appeal before the Tribunal. Accordingly, the respondents shall not initiate any action for recovery of excise duty, which is the subject matter of appeal before the Tribunal. Liberty is granted to the petitioner to file appropriate application before the second respondent - the Commissioner of Central Excise (Appeals-II), to re-transfer the appeals to the Call Book and if such an application is filed, the Commissioner shall take into consideration that the identical issue is pending before the Tribunal in the assessee s own case and shall pass appropriate orders on merits and in accordance with law, within a period of three weeks from the date, on which, such application is filed. Petition disposed off.

Summary

Issues involved:
1. Stay of recovery proceedings pending disposal of appeal before Customs, Excise and Service Tax Appellate Tribunal.
2. Direction to re-transfer appeals pending before Commissioner of Central Excise (Appeals) to the Call Book.

Analysis:

Issue 1: Stay of recovery proceedings pending disposal of appeal before Customs, Excise and Service Tax Appellate Tribunal
The petitioner sought relief to prevent the respondents from initiating any recovery proceedings until the appeal before the Tribunal was resolved. The Tribunal had initially granted an interim stay order, which was extended multiple times due to the appeal not being disposed of. The petitioner filed miscellaneous petitions for stay extension, and the Tribunal extended the stay orders. The Tribunal acknowledged the delay in appeal hearing and extended the stay to prevent recovery actions. The High Court noted that the Tribunal had been dealing with appeals from 2007 and due to the backlog, it might take time for the petitioner's appeal from 2008 to be resolved. Therefore, the High Court ordered that the stay granted by the Tribunal, last extended on 12.8.2015, should continue until the appeal was disposed of, preventing any recovery actions by the respondents.

Issue 2: Direction to re-transfer appeals pending before Commissioner of Central Excise (Appeals) to the Call Book
The petitioner also requested a direction to re-transfer two appeals pending before the Commissioner of Central Excise (Appeals) to the Call Book. These appeals were similar to the issues under consideration by the Tribunal. Initially, the Commissioner had transferred the appeals to the Call Book, but later decided to list them for hearing. The High Court granted liberty to the petitioner to file an application before the Commissioner to re-transfer the appeals to the Call Book. If such an application was submitted, the Commissioner was directed to consider the pending issues before the Tribunal and make a decision within three weeks of receiving the application. The High Court disposed of the writ petition with these directions, without imposing any costs.

In conclusion, the High Court's judgment addressed the issues of stay of recovery proceedings pending appeal and the re-transfer of appeals to the Call Book, providing detailed directions for each matter, ensuring justice and fair consideration of the petitioner's case.