Dismissed

M/s. Facor Alloys Limited, v. Superintendent

Telangana HC4 Feb 2013WP/2386/2013

Case brief

AI extract

What is this about?

The High Court stayed coercive recovery measures by the Central Excise Authority directed by a demand notice dated January 8, 2013, pending the disposal of stay and waiver applications by CESTAT pending a technical vacancy. The liability remains subject to the Tribunal's interlocutory orders.

What did the court decide?

Direction to respondents not to initiate coercive measures for recovery pursuant to the demand notice dated 8.1.2013 pending disposal of stay applications by CESTAT, Bangalore.

M/s. Facor Alloys Limited, Vs Superintendent — Customs and Excise | Telangana HC (2013)

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THE HON’BLE SRI JUSTICE GODA RAGHURAM AND

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THE HON’BLE SRI JUSTICE M.S. RAMACHANDRA RAO

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W.P.No.2386 of 2013

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Order : ( Per the Hon’ble Sri Justice M.S. RAMACHANDRA RAO )

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This Writ Petition has been filed challenging Sl. No.9 of Circular No.967/01/2013-CX dated 1.1.2013 issued by the 4^th respondent and the notice dated 8.1.2013 issued by the first respondent directing the petitioner to pay an amount of Rs.16,18,888/- availed by it towards Cenvat Credit within 7 days from the date of service of the said notice along with interest and penalty as per the order-in-Original No.VIZ-CEX00ADC-005/12 dated 13.1.2012 in C.No.V/15/33/2011Adj dated 13.1.2012 of 2^nd respondent as confirmed by the 3^rd respondent in his order dated 23.5.2012 in Order-in-Appeal No.635-2012.

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The petitioner is a company engaged in the manufacture and sale of Ferro Alloys. It had purchased Molasses and claimed Cenvat credit to an extent Rs.16,18,888/- under Rule 9 of the Cenvat Credit Rules 2004 for exporting the same. The 2^nd respondent vide Show Cause notice dated 24.3.2011 proposed to disallow the Cenvat Credit availed by the

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petitioner and sought to levy interest and penalty under Section 11-AB and 11-AC of the Central Excise Act, 1944 ( for short “the Act”). The petitioner filed its objections on 20.11.2011 to the said show cause notice. The second respondent rejected the objections and confirmed the proposals in his show cause notice by his order dated 13.1.2012. Aggrieved thereby, the petitioner filed an appeal before the 3^rd respondent. By Order-in-Appeal No.35/2012 (V-1) CE dated 5.10.2012, the 3^rd respondent confirmed the order passed by the 2^nd respondent.

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Thereupon, the petitioner filed an appeal in November 2012 before the Customs, Excise and Service Tax Appellate Tribunal, South Regional Bench at Bangalore (CESTAT). The said appeal was numbered as Appeal No.E/3260/2012 A.P. Along with the appeal the petitioner filed application for waiver of pre-deposit of duty and sought stay of the operation of the orders passed by the respondents 2 and 3 pending disposal of the appeal.

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Although the said appeal along with stay application has been filed in the month of November, 2012, in view of the vacancy in the Tribunal on account of absence of a Technical Member, the Tribunal could not take up the stay application in the

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appeal.

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On 8.1.2013, the impugned notice was issued by the 1^st respondent directing the petitioner to pay the sum of Rs.16,18,888/- towards excise duty along with applicable interest and penalty as per the Orderin-Original dated 13.1.2012 and threatened to attach and sell its goods in exercise of powers under Section 11 of the Act.

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The petitioner contends that the impugned notice dated 8.1.2013 has been issued by the first respondent in view of the circular dated 1.1.2013 issued by the Central Board of Excise and Customs in which the said Board had directed that recovery be initiated 30 days after filing of the appeal if no stay is granted. Although the petitioner challenges the validity of the said circular, the learned counsel for the petitioner states that the petitioner does not wish to pursue its challenge to the said circular and would be content if the impugned demand notice is stayed pending consideration of the applications for waiver of pre-deposit of duty under Section 35-F of the Act and for stay of collection of tax filed by it in the appeal before the Tribunal.

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Having regard to the fact that there is a vacancy in the office of a technical member in CESTAT,

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Bangalore and on account of said reason, applications filed for stay and waiver of pre-deposit of duty filed by the petitioner could not be taken up, we consider it appropriate to dispose of the writ petition directing the respondents not to initiate any coercive measures for recovery of the Central Excise duty liability, interest or penalty pursuant to demand notice dated 8.1.2013 of the 1^st respondent, pending disposal by the CESTAT, Bangalore of the applications filed by the petitioner for waiver of pre-deposit and stay of Central Excise duty, interest and penalty. The liability of the petitioner to remit the tax, interest and penalties, as assessed or confirmed, as the case may be, shall be subject to the orders to be passed by the Tribunal in the interlocutory applications preferred by the petitioners. With the above direction, the writ petition is disposed of at the admission stage after hearing Sri S. Dwarakanath, learned counsel for the petitioner and Sri A. Rajasekhar Reddy, leaned Senior Counsel for the respondents.

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M.S. RAMACHANDRA

RAO, J

Date 4- 2-13 KK

THE HON’BLE SRI JUSTICE GODA RAGHURAM

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AND

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THE HON’BLE SRI JUSTICE M.S. RAMACHANDRA RAO

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W.P.No.2386 of 2013

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Dated 4-2-13

M/s. Facor Alloys Limited, v. Superintendent

Case brief

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M/s. Facor Alloys Limited, v. Superintendent

Case brief

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