Excise & Customs : Where stay order of Tribunal has been complied with, balance dues are automatically stayed until stay order is modified/set aside by Tribunal or higher authority; hence, recovery during pendency of appeal is bad in law
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[2014] 51 taxmann.com 181 (Ahmedabad - CESTAT)
CESTAT, AHMEDABAD BENCH
Commissioner of Central Excise & Service Tax, Daman
v.
Atul Ltd.*
M.V. RAVINDRAN, JUDICIAL MEMBER
AND H.K. THAKUR, TECHNICAL MEMBER
ORDER NO. A/11571/2014
APPLICATION NO. E/STAY/14294/2014
APPEAL NO. E/12459/2014
SEPTEMBER 1, 2014
Section 35C, read with section 35B, of the Central Excise Act, 1944, section 86 of the Finance Act, 1994 and Section 129B of the Customs Act, 1962 - Appeals - Orders of - Appellate Tribunal - Tribunal granted stay vide order passed prior 11-5-2002 i.e., prior to introduction of section 35C(2A) - Since appeal was not disposed of, department sought to initiate recovery proceedings - HELD : Since stay was granted prior to 11-5-2002, same would continue to be valid till disposal of appeal - Since appeal was still pending, no recovery could be initiated [Paras 3 to 5] [In favour of assessee]
Section 11, read with section 11E, of the Central Excise Act, 1944, sections 87 and 88, of the Finance Act, 1994 and sections 142 and 142A, of the Customs Act, 1962 - Recovery - Of sums due to Government - Assessee's appeal against demand order was pending before Tribunal and Tribunal had granted stay in said matter - During pendency of appeal, department recovered demand vide adjusted against rebate/refund - Commissioner (Appeals) held that since stay order of Tribunal had been complied with, balance dues were stayed; and until stay order is modified/set aside by Tribunal or higher authority, no recovery can be made by department - HELD : Appeals against demands were still pending before Tribunal - When appeals are pending before Tribunal, there is no confirmed dues as Tribunal has granted unconditional waiver to assessee - Hence, recovery was bad in law and accordingly, department was directed to grant rebate/refund [Paras 3 to 5] [In favour of assessee]
K. Sivakumar, A.R. for the Appellant. Anand Nainawati, Advocate and Rakesh Shah, Manager for the Respondent.
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[2014] 51 taxmann.com 181 (Ahmedabad - CESTAT)
CESTAT, AHMEDABAD BENCH
Commissioner of Central Excise & Service Tax, Daman
v.
Atul Ltd.*
M.V. RAVINDRAN, JUDICIAL MEMBER
AND H.K. THAKUR, TECHNICAL MEMBER
ORDER NO. A/11571/2014
APPLICATION NO. E/STAY/14294/2014
APPEAL NO. E/12459/2014
SEPTEMBER 1, 2014
Section 35C, read with section 35B, of the Central Excise Act, 1944, section 86 of the Finance Act, 1994 and Section 129B of the Customs Act, 1962 - Appeals - Orders of - Appellate Tribunal - Tribunal granted stay vide order passed prior 11-5-2002 i.e., prior to introduction of section 35C(2A) - Since appeal was not disposed of, department sought to initiate recovery proceedings - HELD : Since stay was granted prior to 11-5-2002, same would continue to be valid till disposal of appeal - Since appeal was still pending, no recovery could be initiated [Paras 3 to 5] [In favour of assessee]
Section 11, read with section 11E, of the Central Excise Act, 1944, sections 87 and 88, of the Finance Act, 1994 and sections 142 and 142A, of the Customs Act, 1962 - Recovery - Of sums due to Government - Assessee's appeal against demand order was pending before Tribunal and Tribunal had granted stay in said matter - During pendency of appeal, department recovered demand vide adjusted against rebate/refund - Commissioner (Appeals) held that since stay order of Tribunal had been complied with, balance dues were stayed; and until stay order is modified/set aside by Tribunal or higher authority, no recovery can be made by department - HELD : Appeals against demands were still pending before Tribunal - When appeals are pending before Tribunal, there is no confirmed dues as Tribunal has granted unconditional waiver to assessee - Hence, recovery was bad in law and accordingly, department was directed to grant rebate/refund [Paras 3 to 5] [In favour of assessee]
K. Sivakumar, A.R. for the Appellant. Anand Nainawati, Advocate and Rakesh Shah, Manager for the Respondent.
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