No coercive measure for recovery of interest and penalty to be taken if duty amount is paid and stay granted till disposal of appeal.

PJ/Case law/2014-15/2196

Case:- M/S BHUSHAN STEEL LTD Vs COMMISSIONER OF CENTRAL EXCISE,RAIGAD

Citation:-2014-TIOL-440-CESTAT-MUM

Brief facts:-A miscellaneous application had been filed by the appellant M/s Bhushan Steel Ltd. on the ground that in spite of the stay order passed by this Tribunal vide Order no. S/496/11/EB/C-II dated 20.06.2011, wherein stay was granted from pre-deposit of the interest and penalty considering the payment of duty made by the appellant and stay being extended vide Order no. M/2404-2408/13/EB/C-II dated 26.11.2013 till the disposal of the appeal, the jurisdictional Superintendent had issued a letter dated 11.11.2013 directing the appellant to make payment of the interest and penalty on the ground that in view of the amended provisions of section 35C of the Central Excise Act, 1944, the total period of stay can be only 365 days and not beyond.

Appellant’s contention:-The learned Counsel for the appellant submits that the appeal is pending in the Tribunal not on account of any fault on the part of the appellant but because of the huge pendency of the appeal. He further points out that in the case of Kumar Cotton Mills Pvt. Ltd.2005(180)ELT 434(SC) = (2005-TIOL-42-SC-CESTAT), the Hon'ble Apex Court had held that even though there may be provisions under the Act for grant of stay for a particular period, for any administrative reasons, the appeals are not finally disposed of, the Tribunals are empowered to extend the period of stay on good cause and only on satisfaction that matter could not be heard and disposed of by reasons of fault of Tribunal and for reasons not attributable to the assessee. In the present case, there are more than 20,000 appeals pending before the Mumbai Bench of this Tribunal and the delay in disposal of the appeal is not due to any fault on the part of the appellant assessee. Therefore, the ratio laid down by the Hon'ble Apex Court in Kumar Cotton Mills (supra) squarely applies. In a recent decision, the Hon'ble Bombay High Court also held that the recoveries can be effected if stay has expired only with respect to the duty amount and not with respect to interest and penal liabilities in the case of India Steel Works Ltd.- 2014-TIOL-24-HC-MUM-CX.

Respondent’s contention:-The learned representative for department retreated findings of lower authority.

Reasoning of judgement:-In the present case, the appellant has already paid the duty amount and stay is in respect of only interest and penal liability. In these circumstances, the department is restrained from proceeding with any coercive measures for recovery of the dues adjudged against the appellant. The miscellaneous application is accordingly allowed.

Decision:-Application allowed.

Comment:-The analogy drawn from the case is that no coercive action is to be taken for recovery of interest and penalty, particularly when the stay application was allowed and extended till the disposal of appeal. Moreover, in the case of Indian Steel Works, the Mumbai High Court has held that even if recovery is to be effected on expiry of stay, then too, no coercive action is to be taken for recovery of interest or penalty if the duty amount has already been paid.

Prepared by :- Pooja Mehta

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PJ/Case law/2014-15/2196

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