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TMI Blog2013 (10) TMI 1321X X X X Extracts X X X X X X X X Extracts X X X X ..... ay on the part of the petitioner in getting the stay applications decided. It is also not the case on behalf of the respondent that the delay in deciding the stay application is attributable to the petitioner. - If the respondent No. 2 would have waited till the stay applications are decided such an eventuality may not have taken place. Be that it may now in view of the disposal of the stay applications subsequently, petitioner is entitled to refund of ₹ 1,39,92,754/- which the respondent No. 2 has recovered by way of adjusting the same from the other 9 sanctioned rebate claims of exports of the petitioner. - Decided in favour of assessee. - Special Civil Application No. 11862 of 2013 - - - Dated:- 3-10-2013 - M.R. Shah and Sonia G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, Excise and Service Tax Appellate Tribunal (hereinafter referred to as the CESTAT). That along with Appeals, the petitioner also submitted the stay applications/application for waiver of pre-deposit. That the said appeals and the stay applications came to be filed on 10-5-2013. That as the department was insisting for recovery of amount under the OIO, the petitioner served a letter dated 4-7-2013 to the Divisional Assistant Commissioner informing that their stay applications are yet not heard and therefore, it was requested not to proceed further with the recovery. It appears that despite the above and pending the stay applications, the department recovered an amount of ₹ 1,49,92,754/- from the other 9 sanctioned rebate claims of ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isional Assistant Commissioner i.e. respondent No. 2 recovering an amount of ₹ 1,49,92,754/- from the other 9 sanctioned rebate claims of exports of the petitioner, petitioner has a statutory remedy available by way of appeal. However, is not in a position to dispute the fact stated hereinabove, more particularly, the subsequent orders passed by the learned CESTAT passed in the stay applications submitted by the petitioner. 6. Heard Shri H.D. Dave, learned advocate for the petitioner and Shri R.J. Oza, learned advocate for the respondent No. 2. At the outset, it is required to be noted that as such during the pendency of the stay application, respondent No. 2 recovered an amount of ₹ 1,49,92,754/- from the other 9 sanctioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of adjusting the same from the other 9 sanctioned rebate claims of exports of the petitioner. 7. In view of the above and for the reasons stated above, petition succeeds. Respondent No. 2 is hereby directed to refund a sum of ₹ 1,39,92,754/- (i.e. after deducting ₹ 10 lacs out of ₹ 1,49,92,754/- recovered by way of adjusting the same from the other 9 sanctioned rebate claims of exports of the petitioner). However the same shall be without prejudice to the rights and contentions of the respective parties in the appeals and subject to ultimate outcome of the main Appeal Nos. E/11293, 11354 11388/2013 pending before the CESTAT. Respondent No. 2 to refund the aforesaid amount of ₹ 1,39,92,754/- at the earliest but n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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