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TMI Blog2022 (8) TMI 508X X X X Extracts X X X X X X X X Extracts X X X X ..... refer an appeal to the Appellate Tribunal under Section 129(3) of Customs Act, 1962 within three months from the date of the communication of the order with the Assistant Registrar, Customs, Excise and Service Tax Appellate Tribunal (CESTAT), Western Bench, Mumbai. In NG. ENTERPRISES VERSUS COMMISSIONER OF CUSTOMS (APPEALS), NEW DELHI [ 2000 (5) TMI 53 - HIGH COURT OF DELHI] , the Division Bench of the Delhi High Court, by referring to the Board s circular dated 02.06.1998, held that the revenue could not be permitted to take a stand contrary to the instructions issued by the Board. It is a different matter that an assessed can contest the validity or legality of a departmental instruction. But that right cannot be conceded to the Department, more so when others have acted according to such instructions. The circular, in terms, provided that coercive measures to recover duty demanded as a result of adjudication ought not to be taken until the Commissioner s disposal of the stay application. Moreover, the Circular took cognizance of the Bombay High Court ruling that no coercive action should be taken to realize the dues during the pendency of the stay application before appellate au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers contend that such coercive action contradicts the Central Board of Excise and Customs (CBEC) circular no.984/08/2014-CX dated 16.09.2014. Mr. Chauhan has relied on several decisions where this circular or similar circulars have been enforced and directions issued to the respondents to refrain from taking coercive action before the expiry of limitation to institute an appeal or during the pendency of the appeal. 6. Ms. Asha Desai objected to the maintainability of this petition by pointing out that the petitioners have an alternate and efficacious remedy of appeal against the Order in Original dated 30.06.2020. She submitted that the respondents had merely addressed a letter to the HDFC Bank seeking encashment of the Bank Guarantee as it was expected that the encashment formalities would take some time. Therefore, she maintained that the petitioners should be relegated to avail of the alternate remedy of appeal. Moreover, if such an appeal succeeds, the petitioners can always be refunded the recovered amounts with interest. 7. Rival contentions now fall for our determination. 8. Mr. Chauhan, the learned Counsel for the petitioners, clarified that the petitioners were not cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the pendency of stay applications or appeals with the appellate authority. This Circular would not apply to cases where appeal is filed after the enactment of the amended Section 35F of the Central Excise Act, 1944 or Section 129E of the Customs Act, 1962. 4.2 No coercive measures for the recovery of balance amount i.e., the amount in excess of 7.5% or 10% deposited in terms of Section 35F of Central Excise Act, 1944 or Section 129E of Customs Act, 1962, shall be taken during the pendency of appeal where the party/assessee shows to the jurisdictional authorities: (i) proof of payment of stipulated amount as pre-deposit of 7.5%/10%, subject to a limit of Rs.10 crores, as the case may be; and (ii) the copy of appeal memo filed with the appellate authority. 4.3 Recovery action, if any, can be initiated only after the disposal of the case by the Commissioner (Appeal)/Tribunal in favour of the Department. For example, if the Tribunal decides a case in favour of the Department, recovery action for the amount over and above the amount deposited under the provisions of Section 35F/129E may be initiated unless the order of the Tribunal is stayed by the High Court/Supreme court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recover duty demanded as a result of adjudication ought not to be taken until the Commissioner's disposal of the stay application. Moreover, the Circular took cognizance of the Bombay High Court ruling that no coercive action should be taken to realize the dues during the pendency of the stay application before appellate authorities. 16. In similar facts, a similar view was taken by the High Court of Karnataka in M/s. FCI Oen Connectors Ltd. V/s. Union of India & Ors. WP No.5901/2021 decided on 23.12.2021 & Oracle India Pvt. Ltd. V/s. Union of India 2013 SCC OnLine Kar 10723. 17. In Ocean Driving Centre V/s. Union of India & Ors. 2004 (3) Mh.L.J. 55, another coordinate Bench, after referring to the declared policy of the Customs Authorities not to resort to coercive action to recover duty during the appeal period, held that the authorities cannot encash the Bank Guarantee given by the Assessee before the expiry of the statutory period available for filing an appeal along with an application for stay or waiver to pre-deposit. 18. A similar view was taken in Nobel Asset Company Ltd. V/s. Union of India 2005 SCC OnLine Bom 1710 by a Coordinate Division Bench. 19. Despite cir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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