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2013 (4) TMI 102 - HC - Central ExciseInitiation of recovery proceedings relying on Circular No.967 /01/2013-CX dated 1.1.2013 - as per dept. assessee had availed cenvat credit of service tax paid on different services in relation to maintenance and repair works of its residential colony which did not appear to be eligible input services - assessee contested against recovery as not only the appeal is pending, its prayer for stay of realization of the cenvat credit alongwith Interest and penalty has not yet been considered and disposed of on merits - Held that:- A plain perusal of the circular dated 1.1.2013 would unequivocally demonstrate that it is in the form of administrative instructions issued by the CBEC New Delhi obligating the concerned authorities to initiate recovery proceedings against the confirmed demands in the eventualities narrated therein fixing periods therefore. Broadly, three situations have been contemplated (1) where no appeal has been filed against a confirmatory order in original (2) where an appeal has been filed without stay application against a confirmatory order in original and (3) where an appeal has been filed with a stay application against such order. Assertive plea made on behalf of the petitioners that the office of the Commissioner (Appeals) Jaipur-I is lying vacant for which there is no possibility in near future that the appeals and interim applications would be heard and disposed of, has not been refuted. Having regard to the statutory obligations past for timely disposal of the appeals and the interim applications, its is constrained to conclude that the contemplated recovery of the demands in this factual scenario even otherwise, if approved, would be grossly unfair, unjust and unreasonable and would amount to allowing the respondents-authorities to take advantage of their own lapses and failings. The petitioners- assessees , whose appeals alongwith interim applications are pending without any decision for no fault of theirs, can by no means be left exposed to the megrim of the departmental authorities test the statutory guarantee engrafted in Chapter VIA of the Act is rendered illusory. The plea that the power of issuing earlier circulars on the same issue with some protective features vis -a- vis the assesses now recalled envisages permissibility to withdraw the same lacks persuasion. In absence of any legal endorsement of the impugned circular dated 1.1.2013, it, flies in the face of the provisions contained in Chapter VIA of the Act testifying a contrary legislative enjoinment and thus, cannot be sustained vis -a- vis the contingencies where the appeals with stay and interim applications for dispensing with the deposit of duty demanded or penalty levied are pending without being attended to or in which no final orders have been passed. See Larsen Toubro Ltd. V/s The Union of India and ors. [2013 (2) TMI 188 - BOMBAY HIGH COURT] - in favour of assessee.
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