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PJ/CASE LAW/2016-17/3083

Whether the demand of duty is correct when restoration application is pending with Tribunal?

 
Case:- HINDUSTAN PETROLEUM CORPORATION LTD. Versus UNION OF INDIA

Citation:- 2016 (332) E.L.T. 255 (Kar.)

Brief Facts:-Challenging the demand of Service Tax, the writ petitioner filed an appeal before the CESTAT which was dismissed for want of clearance from the Committee of Disputes, as was required in terms of the judgment of the Supreme Court. After grant of permission by the Committee of Disputes on 26-10-2007, the petitioner filed restoration application before the CESTAT on 15-12-2008. The restoration application was pending when proceedings for recovery were initiated against the petitioner. An application for early hearing of the restoration application, as well as the appeal along with the stay application, was filed, which has not been decided by the Tribunal. This petition has been filed primarily with the prayer for a direction to the CESTAT to decide the restoration application, as well as the stay application, expeditiously, and till then, recovery may not be initiated against the petitioner. The petitioner is a public sector undertaking. It is submitted that in case recovery is made without considering the stay application of the petitioner, it shall suffer irreparable loss.

Respondent’s Contention:-The respondents submits that since the appeal was dismissed for not availing permission from the Committee of Disputes and the restoration application is yet not been allowed, there is no appeal pending in the eye of law, and as such, prayer for consideration of the stay application of the petitioner does not arise.

Reasoning of Judgment:- Having heard learned counsel for the parties and considering the facts and circumstances of the case, they dispose of this writ petition with the observation that in case the petitioner files a fresh application for early hearing of the restoration application, as well as the stay application, before the CESTAT, the same shall be considered and decided as expeditiously as possible and preferably within six weeks from the date of filing of the applications.

Decision:- With the aforesaid observation/direction, this writ petition stands disposed of

Comments:- The Crux of this case is that the assessee filedappeal before the CESTAT which was dismissed for want of clearance from the Committee of Disputes. After grant of permission by the Committee of Disputes, the petitioner filed restoration application before the CESTAT.  The restoration application was pending when proceedings for recovery were initiated against the petitioner. An application for early hearing of the restoration application, as well as the appeal along with the stay application, was filed, which has not been decided by the Tribunal. In this case the Tribunal dispose of the writ petition and give a chance to petitioner to file fresh application for early hearing.
 
 
 
 
 
 
 
 

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