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TMI Blog2023 (2) TMI 834X X X X Extracts X X X X X X X X Extracts X X X X ..... ust be granted after 3 months from the date of the order. In the above circular the board has reiterated its earlier circular No. 572/9/2001-cx dated 22.02.01 which clarified that against the order from which the refund arises is not stayed by the higher authority within 3 months the refund must be granted - In the present case the Department has withheld the refund merely for the reason that this Tribunal s order GOODEARTH MARITIME LIMITED, has been appealed against before the Hon ble High Court of Gujarat under tax Appeal No: 299 of 2020. However, even after 2 years of filing tax appeal no stay could be obtained by the revenue. The revenue has no option except to grant the refund to the respondent. Accordingly, neither the stay application nor the appeal against the order of the Commissioner (Appeals) granting refund are not maintainable - there are no infirmity in the orders of the Commissioner (Appeals), hence, the same are upheld Revenue s appeals are dismissed. - C/10141/2021, C/Stay/10083/2021, C/Cross/10286/2021 with C/10139/2022, C/Stay/10100/2022, C/Cross/10155/2022 - A/10260-10261/2023 - Dated:- 6-2-2023 - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. RAJU, MEMBE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut of any order of adjudication/Commissioner (Appeals)/ CESTAT. unless a stay order is obtained refund must be granted after 3 months from the date of the order. The relevant CBEC Circular No. 572/9/2001-CX., dated 22.02.2001 is reproduced below: Refund/Rebate claims - Disposal of claims where application pending at appellate level Circular No. 572/9/2001-CX, dated 22-2-2001 F. No. 201/20/2000-CX.6 Government of India Ministry of Finance (Department of Revenue) Central Board of Excise Customs, New Delhi Subject : Central Excise Customs - Disposal of refund/rebate claims where application is pending at appellate level - Instructions - Regarding. I am directed to state that it has come to notice of the Board that doubts prevail in the field formations in regard to action to be taken for disposal of refund/rebate cases where the matter is pending with different appellate authorities. In this regard, attention is drawn to the CBEC Circular No. 398/31/98-CX., dated 2nd June, 1998 and the CBEC Circular No. 76/95- Cus., dated 28th June, 1995. After examining the issue in detail and in suppression of the aforementioned Circulars, the Board ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (i) Where a High Court has stipulated any time-limit for implementation of its order, the Customs House/Central Excise Commissionerate apart from taking steps for filing SLP/Stay Petition before the deadline, as mentioned in para (a) above, should simultaneously file an application before the High Court intimating steps taken for filing SLP/Stay Petition before the Apex Court, and request be made for extension of time-limit for implementation of the order till the department s Stay Application is heard or disposed of by the Hon ble Supreme Court. If the High Court rejects the application, a copy of the application filed and the order of the High Court should be immediately faxed to the Board, so that even this could be produced to Supreme Court Registry, while seeking out of turn/urgent hearing for stay. (ii) Where no time-limit is stipulated by the High Court for implementing its order, but the petitioner files a contempt petition/notice in the High Court, the same should be immediately faxed to the Board, for similar action as mentioned in (i) above for pressing for urgent hearing of our stay. It would be possible for the Board s office to file SLP/Stay Petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peals) suffer from serious infirmities and it involves grant of heavy refunds. (4) Cases where refund arises due to order of a Central Excise Officer/Customs Officer subordinate to Commissioner of Central Excise/Cus-toms and decision is taken to file appeal before Commissioner (Appeals). In such cases also, appeal/stay application should be filed expeditiously within the stipulated period (but without waiting for the last date of filing of appeal). However, no refund/rebate claim should be withheld on the ground that an appeal has been filed against the order giving the relief, unless stay order has been obtained. It would be the responsibility of the concerned Commissioner to move expeditiously and obtain stay order from Commissioner (Appeals), especially where the orders passed by such Central Excise Officer/Customs Officer suffer from serious infirmities and it involves grant of heavy refunds. (5) General In all types of cases mentioned above, processing of refund application should simultaneously start separately from the point of view of unjust enrichment provisions and accordingly the assessee/claimant should be asked to submit the evidence to esta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Board has decided to permit jurisdictional Commissioners to take decision in such cases on merits at their level to grant refund or release goods without seeking permission/clearance from the Board. However, in the matters concerning Supreme Court, the jurisdictional Commissioners should continue to pursue with the Board for early disposal of stay application. 3. Board s Circular bearing No. 572/9/2001-CX., dated 22-2- 2001 stands modified to the above extent. 4. Field formations may please be informed suitably. 5. Receipt of the same may please be acknowledged. 6. Hindi version will follow. In the above circular the board has reiterated its earlier circular No. 572/9/2001-cx dated 22.02.01 which clarified that against the order from which the refund arises is not stayed by the higher authority within 3 months the refund must be granted. In the present case the Department has withheld the refund merely for the reason that this Tribunal s order dated 12.03.2020, has been appealed against before the Hon ble High Court of Gujarat under tax Appeal No: 299 of 2020. However, even after 2 years of filing tax appeal no stay could be obtained by the revenue. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e because of the circulars of the Board in many cases the Department had granted benefits of exemption notifications. It was submitted that on the interpretation now given by this Court in Dhiren Chemical case the Revenue was likely to reopen cases. Thus para 9 (para 11 in SCC) was incorporated to ensure that in cases where benefits of exemption notification had already been granted, the Revenue would remain bound. The purpose was to see that such cases were not reopened. However, this did not mean that even in cases where the Revenue/Department had already contended that the benefit of an exemption notification was not available, and the matter was sub judice before a court or a tribunal, the court or tribunal would also give effect to circulars of the Board in preference to a decision of the Constitution Bench of this Court. Where as a result of dispute the matter is sub judice, a court/tribunal is, after Dhiren Chemical case, bound to interpret as set out in that judgment. To hold otherwise and to interpret in the manner suggested would mean that courts/tribunals have to ignore a judgment of this Court and follow circulars of the Board. That was not what was meant by para 9 of D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eally no existence in law. 7 . As noted in the order of reference the correct position visa- vis the observations in para 11 of Dhiren Chemical s case (supra) has been stated in Kalyani s case (supra). If the submissions of learned counsel for the assessee are accepted, it would mean that there is no scope for filing an appeal. In that case, there is no question of a decision of this Court on the point being rendered. Obviously, the assessee will not file an appeal questioning the view expressed vis-a-vis the circular. It has to be the revenue authority who has to question that. To lay content with the circular would mean that the valuable right of challenge would be denied to him and there would be no scope for adjudication by the High Court or the Supreme Court. That would be against very concept of majesty of law declared by this Court and the binding effect in terms of Article 141 of the Constitution. 8 . The reference is accordingly answered holding that the correct view has been expressed by Kalyani s case (supra) as noted in the reference order. 9 . The appeals filed by the revenue are allowed while those filed by the assessee stand dismissed. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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