Recovery of confirmed demands of excise during pendency of stay application. Important changes due to judgments. CBEC Circular 1035/23/2016-CX

Circular No.  1035/23/2016-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, dated the 4th Jul y, 20 16

To.
The Principal Chief Commissioners! Chief Commissioners of Central Excise (All)
The Principal Chief Commissioners/ Chief Commissioners  of Central  Excise and Service Tax (All)
The Principal Chief Commissioners/ Chief Commissioners of Service Tax (All)
The Principal Chief Commissioners/ Chief Commissioners of Customs (All)
The Directors General (All)

Sub: Recovery of confirmed demands during the pendency of stay application-reg.

Madam/ Sir,

Kind attention is invited to Board Circular No. 957/1/2013-CX dated 01.01.2013 on the issue of recovery of confirmed demands during the pendency of stay application filed by the assessee. Since then important changes in law have been made and important judgments have come on the subject. Accordingly ,it has been decided to review the Circular.

Part 1:When stay application is pending before Commissioner (Appeals) or CESTAT:

2.0 The circular dated 01.01.2013 was examined by Hon’ble High Courts in situations where stay applications was pending before Commissioner (Appeals) or CESTAT. In this regard some of the important judgments arc L&T vs. UOI [2013-TIOL-99-HC-CX] and Karnavati Club ltd. Vs UOI (SCA No. 2422/12013), wherein the Courts held that recovery could be made only in cases where delay in deciding the stay could be attributed to the conduct of the assessee. No appeal was filed against these judgment s of the Hon’ble High Courts by the Department and thus these judgments attained finality.

3.1 However Hon’ble High Court of Punjab and Haryana judgment in case of M/s PML Industries Vs Commissioner of Central Excise [2013-TIOL-201 -HC-P&H-CX] pronounced that during the pendency of stay, irrespective of the conduct of the assessee, no recovery could be made. ln para 46, Hon’ble Court observed that :-

” …we are of the opinion that right of consideration in appeal on an application for waiver of pre-deposit. is a right conferred by the Statue and such right cannot be defeated on the basis of  Circular… “.

3.2 SLP filed by the Department [SLP (Civil) 765/20 14] against the judgment of Hon’ble High Court of Punjab and Haryana, has been dismissed by the Hon’ble Supreme Court, thus upholding the decision of the Hon’ble High Court. The relevant obscrvatiton of the Hon’ble Supreme Court while dismissing the SLP, is reproduced below:-

“ln view of the judgment and order passed by this Court in Commissioner of Customs & Central Excise, Ahmedabad v. Kumar Couon Mills Pvt. ltd [2005 (180) ELT 43.4 (SC) 2005-TIOL-42-SC-CX], we find no reason to interfere with the impugned order passed by the High Court.  The special leave petitions are dismissed …’

4.1 In  light of the above judgments , the Circular 967/1/2013-CX dated  01.01.2013 is hereby rescinded and following fresh instructions arc given on  the  subject. It is also clarified that seven  circulars  which  had  been  rescinded  vide  Circular  No.  967/1/2013-CX  dated 01.01.2013  shall continue to remain  rescinded.

4.2 In cases where stay application is pending before Commissioner (Appeals) or CESTAT for periods prior to 06.08.2014, no recovery shall be made during the pendency of the stay application.

4.3 For subsequent period ie. from 06.08.2014  onwards,  instructions contained  in  Circular No. 984/08/2014-CX dated 16.09.2014 shall continue to be followed. Section 129E of the Customs Act, 1962 and Section 35F of the Central Excise Act, 1944, as made applicable to Service Tax vide Section 83 of the Finance Act 1994, was amended vide Finance Act, 2014 with effect  from 06.08.2014.

Part II : When demand is confirmed by Hon’blc CESTAT or Hon’ble High Court & stay is pending before Hon’ble High Court or Hon’ble Supreme Court:

5.1 Attention  is invited S No. 11 of the Circular No. 967/1/2013-CX dated  01.01.2013 providing that when a demand is confirmed by a Hon’blc CESTAT or a Hon’ble High Court, recovery may be initiated immediately on the issue of order by the Hon’ble Tribunal or the High Court, if no stay is in operation. Hon’ble High Court of Gujarat in case of Karnavati Club Ltd . (SCA No. 2422/2013) examined the entire Circular dated   01.01.2013 and  in relation  to Sl. No 11 , in para 29 of the judgment,  upheld  the  direction contained  in  the circular. without any modification.

5.2 As a measure of liberalization and to ensure uniformity of practice, it is hereby directed that , recovery proceeding in relation to an order of Hon’ble High Court or Tribunal confirming demand of duty, may be initiated only afler a period of sixty davs from the date of order of the Hon’ble Tribunal or Hon’ble High Court, as the case may be, where no stay has been granted by Hon’ble High Court or Hon’ble Supreme Court against the order of Hon’ble Tribunal or Hon’ble High Court, respectively

6.0 Instruction s 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 to the extent  of the conflict.

7.0 Difficulties. if any, in the implementation of above instructions may be brought to the notice of the Board . Hindi version will follow.

(Shankar Prasad Sarma)
Under Secretary to the Govt. of India