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The Bombay High Court today (17.01.2013) granted ad-interim stay against coercive recovery pursuant to Circular No. 967/01/ 2013 – CX dated 01.01.2013 issued by the Central Board of Excise and Customs. The orders were passed in the case of Uhde India Pvt. Ltd vs. UOI WP 380 of 2013, Exide Industries Ltd vs. UOI WP No. 381 of 2013 and connected matters. The Petitions are now listed for admission on 31.01.2013 to enable the Department to file a reply. The Andhra Pradesh High Court has already granted on 09.01.2013 a stay in the matter in the case of Ultratech Cement Ltd vs. UOI W.P. No. 736 of 2013

The view that is taken by the High Courts in these matters will have considerable bearing in income-tax matters as well.

Update: In Larsen & Toubro Limited vs. UOI (Bom) parts of the Circular have been struck down as being arbitrary & unreasonable


IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD
WEDNESDAY, THE NINTH DAY OF JANUARY, TWO THOUSAND AND THIRTEEN

PRESENT:
THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY
AND
THE HON’BLE SRI JUSTICE SANJAY KUMAR
WPMP.NO:879 of 2013
IN
WP.NO:736 of 2013

Between:
ULTRATECH CEMENT LTD., UNIT: ANDHRA PRADESH CEMENT WORKS BOGASAMUDRAM VILLAGE, TADPATRI MANDAL, TIRUPATI (ANDHRA PRADESH), REP. BY SHRI P.K.JAIN, SR. VICE PRESIDENT. …Petitioner
(Petitioner in WP 736 of 2013
on the file of High Court)

AND

1 UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NORTH BLOCK, NEW DELHI – 110 001.
2 THE SUPERINTENDENT OF CENTRAL EXCISE, TADIPATRI RANGE, ANANTPUR DIVISION, TADIPATRI – 515411, ANDHRA PRADESH.
3 THE ADDL. COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE, NO.9/86-A, AMARAVATHI NAGAR, TIRUPATI-517502.
4 COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE, NO.9/86-A, AMARAVATHI NAGAR, TIRUPATI-517502.
5 THE COMMISSIONER OF CUSTOMS, CENTRAL EXCISE & SERVICE TAX (APPEALS), CENTRAL REVENUE BUILDING, KANNAVARI THOTA, GUNTUR.
6 THE CENTRAL BOARD OF EXCISE AND CUSTOMS, DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, REPRESENTED BY ITS CHAIRMAN, HAVING ITS OFFICE AT NORTH BLOCK, NEW DELHI 110 001. …Respondents

(Respondents in-do-)

Counsel for the Petitioner: M/S. LAKSHMI KUMARAN & SRIDHARAN
Counsel for the Respondents: SRI JALAKAM SATHYARAM (SC FOR CENTRAL EXCISE)

Petition under Section 151 of C.P.C. praying that in the circumstances stated in the affidavit filed in the W.P., the High Court may be pleased to grant stay of clarification issued vide SI.No.3 of the Circular No.967/01/2013-CX, dated 01.01.2013 and consequent Letter, O.C.No.488/2012-13, dated 04.01.2013 issued by the Respondent No.2, pending disposal of WP No.736 of 2013 on the file of the High Court.

The court while directing issue of notice to the Respondents herein to show cause as to why this application should not be complied with, made the following order.(The receipt of this order will be deemed to be the receipt of notice in the case).

ORDER:

There shall be interim stay of recovery of the amount involved, till the appellate authority disposes of the application for stay.

It is made clear that the petitioner shall be under obligation to abide by the order that may be passed by the appellate authority and the pendency of this writ petition shall not be treated as a factor to avoid the liability.

Notice.
ASSISTANT REGISTRAR
//TRUE COPY//
For ASSISTANT REGISTRAR

To

1 THE SECRETARY, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, UNION OF INDIA, NORTH BLOCK, NEW DELHI – 110 001.
2 THE SUPERINTENDENT OF CENTRAL EXCISE, TADIPATRI RANGE, ANANTPUR DIVISION, TADIPATRI – 515411, ANDHRA PRADESH.
3 THE ADDL. COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE, NO.9/86-A, AMARAVATHI NAGAR, TIRUPATI-517502.
4 COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE, NO.9/86-A, AMARAVATHI NAGAR, TIRUPATI-517502.
5 THE COMMISSIONER OF CUSTOMS, CENTRAL EXCISE & SERVICE TAX (APPEALS), CENTRAL REVENUE BUILDING, KANNAVARI THOTA, GUNTUR.
6 THE CHAIRMAN, DEPARTMENT OF REVENUE, CENTRAL BOARD OF EXCISE AND CUSTOMS, MINISTRY OF FINANCE, HAVING ITS OFFICE AT NORTH BLOCK, NEW DELHI 110 001. (1 to 6 by RPAD)
7 One CC to M/S. LAKSHMI KUMARAN & SRIDHARAN, Advocate (OPUC)
8 One CC to SRI JALAKAM SATHYARAM, (SC FOR C & E) (OPUC)
9 Two spare copies.

SRL


Circular No.  967/01/  2013 – CX
F. No. 208/36/2012-CX.6
Government of India
Ministry of Finance
 Department of Revenue
Central Board of Excise and Customs, New Delhi

New Delhi, the Dated 1st January, 2013

To,

      (i)     The Chief Commissioner of Central Excise (All),
     (ii)    The Chief Commissioner of Central Excise & Customs (All),
     (iii)   The Chief Commissioner of Customs (All),
     (iv)   Directors General (All)

Madam/ Sir,

Subject - Recovery of confirmed demand during pendency of stay application- regarding

         I am directed to bring your attention to the following circulars issued from time to time on the above issue and to state that it has been decided to rescind these circulars with immediate effect.

Sl No

Date

Circular no and File number of CX-6

1

18-11-88

80/88 and 208/31/88

2

2-3-90

7/90 and 208/107/89

3

21-12-90

23/90 and 209/107/89

4

12-11-92

16/92 and 208/59/92

5

3-8-94

47/47/94 and 208/33/94

6

2-6-98

396/29/98 and 201/04/98

7

25-2-2004

788/21/2004 and 208/41/2003




2)      Henceforth, recovery proceedings shall be initiated against a confirmed demand in terms of the following order –

Sl No

Appellate Authority

Situation

Directions regarding recovery.

1

NIL

No appeal filed against a confirmatory order in original against which appeal lies with Commissioner (Appeals).

Recovery to be initiated after expiry of statutory period of 60 days for filing appeal.

2

Commissioner
(Appeals)

Appeal filed without stay application against a confirmatory order in original.

Recovery to be initiated after such an appeal has been filed, without waiting for the statutory 60 days period to be exhausted.

3

Commissioner
(Appeals)

Appeal filed with a stay application against an order in original.

Recovery to be initiated 30 days after the filing of appeal, if no stay is granted or after the disposal of stay petition in accordance with the conditions of stay, if any specified, whichever is earlier.

4

NIL

No appeal filed against an Order in Original issued by the Commissioner.

Recovery to be initiated after expiry of statutory period of 90 days for filing appeal from the date of communication of order.

5

CESTAT

Appeal filed without stay application against an Order in Original issued by the Commissioner.

Recovery to be initiated on filing of such an appeal, without  waiting for the statutory 90 days period to be exhausted.

6

CESTAT

Appeal filed with a stay application against an Order in Original issued by the Commissioner.

Recovery to be initiated 30 days after the filing of appeal, if no stay is granted or after the disposal of stay petition in accordance with the conditions of stay, if any, whichever is earlier.

7

NIL

No appeal filed against an Order in Appeal issued by a Commissioner (Appeals) confirming the demand for the first time.

Recovery to be initiated after expiry of statutory period of 90 days for filing appeal from the date of communication of order.

8

CESTAT

Appeal filed without stay application against an Order in Appeal confirming the demand for the first time.

Recovery to be initiated on filing of such an appeal in the CESTAT, without waiting for the statutory 90 days period to be exhausted.

9

CESTAT

Appeal filed with a stay application against an Order in Appeal confirming the demand for the first time.

Recovery to be initiated 30 days after the filing of appeal, if no stay is granted or after the disposal of stay petition in accordance with the conditions of stay, if any, whichever is earlier.

10

CESTAT

All cases where Commissioner (Appeals) confirms demand in the Order in original.

Recovery to be initiated immediately on the issue of Order in Appeal.

11

High Court or Supreme Court

Tribunal or High Court confirms the demand.

Recovery to be initiated immediately on the issue of order by the Tribunal or the High Court, if no stay is in operation.

3)      It may be noted that a confirmed demand remains an order in operation till it is stayed. Mere preferment of appeal itself does not operate as a stay. Hon’ble Supreme Court in case of Collector of Customs, Bombay Vs Krishna Sales (P) Ltd [1994 (73) E.L.T 519 (S.C)] has observed that “As is well known, mere filing of an Appeal does not operate as a stay or suspension of the Order appealed against”. Accordingly, the above directions are hereby issued for initiating recovery of the confirmed demands.

4)      Instructions in CBEC’s Excise Manual of Supplementary instructions on the above subject or any other circular, instruction or letter contrary to this circular stand amended accordingly. 

Yours faithfully,

 

(V.P. Singh)
OSD (CX-6) 

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