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2014 (2) TMI 1254 - HC - Service TaxRecovery of dues - failure to deposit the amount on the ground that appeal has been filed - Petitioner contended that the impugned notice is based or founded upon circular dated 1st January, 2013, which has been quashed and set aside by different High Courts. Also the authorities cannot proceed to recover the amount when the same is the subject matter before this Court in the earlier writ petition. Held that:- the petitioner had an opportunity to deposit the dues as indicated by this Court and having failed to do so, there is no impediment and fetter put on the department to proceed with the recovery of the said amount. The Rajasthan High Court in the case of Manglam Cement Ltd. v. Superintendent of C. Ex. Range-III, Kota [2013 (4) TMI 102 - RAJASTHAN HIGH COURT], categorically held that mere filing of an appeal does not operate as stay or suspension of an order appeal against. The interim order sought for was refused at the admission stage. Therefore, the petitioner cannot say that the authorities are denuded of its power to take steps for recovery of the amount. The petitioner has tried to demonstrate before this Court that certain observations were made when the earlier writ petition was taken up, which inevitably suggest that the Court was conscious of the situation that the authorities shall not take any coercive measures pending the said writ petition. Though this Court finds that the department cannot take advantage of a circular, which is already quashed and set aside by the High Court, but for reasons narrated above, this Court does not intend to interfere with the said recovery notice, even if the circular appears to be non est. Furthermore if certain event has taken place and the observation is made by the Court orally, the same Hon’ble judge can only modify/clarify or indicate the happenings of such event and not by another judge or the higher forum. Since there is no interim order passed by the Court restraining the department from proceeding to recover the amount, the contemplation at the behest of the department for taking measures to recover the said amount cannot be faulted with. - Decided against the petitioner
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