2005 (6) TMI 386

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..... of Rs. 1,03,82,537/- in favour of the appellant. However he appropriated the said amount against another demand to the tune of Rs. 2,11,37,332/- confirmed in the OIA No. 175/2003, dated 9-5-2003. The appellants are aggrieved over the appropriation. The party went in appeal to the Commissioner (Appeals) who has confirmed the Dy. Commissioner's Order.  3.Shri K.S. Ravi Shankar learned advocate appeared on behalf of the appellants and Shri Ramakrishnappa learned DR for the revenue. The learned advocate urged the following points. (i)      The appellants have appealed against OIA No. 175/2003, dated 9-5-2003. Moreover, the Hon'ble Tribunal Chennai has waived the recovery of pre-deposit vide stay order No. 75/20 .....

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..... sp;   In the following case, it has been held that during the pendency of stay application, no coercive action could be taken by the Department for recovery of dues and the sanctioned refund payable to the appellants cannot be appropriated against such sums due to Govt. in terms of Section 11 of the Central Excise Act, 1944. (1)     National Steel Industries Ltd. v. UOI - 2001 (134) E.L.T. 616 (MP) (2)     CCE, Jaipur v. Instrumentation Ltd. - 2002 (140) E.L.T. 518 (T) (3)     Karan Packaging Pvt. Ltd. v. CCE, Bhopal - 2000 (120) E.L.T. 399 (T) (4)     CCE, Jaipur-I v. Indian Shaving Products Ltd. - 2002 (144) E.L.T. 650 (T) (v)   & .....

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..... ) of Central Excise Act, 1944 on statute book, it cannot infer a legislative intent to curtail/withdraw powers of the Tribunal to grant stay in appropriate cases - It is also not possible to infer any curtailment of such powers beyond the period of six months - Legislature would have specifically provided so if it was so intended - Revenue's contention that the assessee must approach the Tribunal and seek extension of stay already granted is misconceived in absence of any change in circumstances - Interpretation that provisions of Section 35C(2A) ibid are mandatory permitting authorities to initiate action once period of 180 days expire from the date of the order granting stay is against the plain language of the provision and does not flow .....

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