TMI Blog2010 (9) TMI 818X X X X Extracts X X X X X X X X Extracts X X X X ..... ady granted. Extension of earlier Stay Order 901-903/08-CX., dated 1-9-2008 covers the intervening period also. The lower authorities are bound to comply with the said order of Tribunal. The observation of Commissioner (Appeals), that the department to ensure compliance of C.B.E.C. Circular No. 354/70/97-CX., dated 13-11-97 cannot be taken as a point to question the legality of impugned Order-in-Appeal. Rather, it is the duty of the department to ensure the correctness of the eligibility of entitlement of the impugned rebate claims in all respect before finally sanctioning/granting of the same. - 198/162-172/2010-RA - 1460-1470/2010-CX, - Dated:- 27-9-2010 - Shri D.P. Singh, J. Shri G.S Sinha, Asstt. Commissioner, for the Departmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C.B.E.C. Circular No. 788/21/2004-CX., dated 25-5-2004 which clarified that such stay order is valid for six months only, the appellants were asked to pay the duty but they informed vide their letter dated 11-5-2009 that they had filed application for extension of stay. Since the stay order stood vacated after expiry of 180 days in terms of the second proviso to Section 35C(2A) of the Act, the appellants were asked to submit the deposit particulars of the amount confirmed vide Order-in-Original No. 11/2008 dated 29-2-2008 passed by the Commissioner, Central Excise Delhi-I, New Delhi as the same was not covered by any stay order but they submitted vide letter dated 2-7-2009 that, till date, no stay order had been granted by the Tribunal. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal has extended the impugned stay till disposal of the case, allowed the appeal. The adjudicating authority was directed to sanction the rebate claim after verifying the original copy of miscellaneous order No. 605- 610/09-CX., dated 29-9-2009 of CESTAT. 4. Being aggrieved by the impugned order-in-appeal, the applicant has filed this revision application under Section 35EE of Central Excise Act, 1944 before Central Government on the following grounds : 4.1 The stay order No. 901 to 903/08 dated 1-9-2008 as stated in para 2 supra was passed by the Hon ble CESTAT in Appeal Nos. 877-879/08-EX-DB filed by the party against Order-in-original No. 11/2008 of Commissioner, Central Excise, Delhi-I dated 29-2-2008 was valid for the period of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise Act, 1944 are applicable where in 2nd proviso it is provided that : Provided further that if such appeal is not disposed of within the period specified in the first proviso, the stay order shall, in the expiry of that period, stand vacated . 4.5 As per the provisions contained in Chapter 18 (Part-III) of C.B.E.C. s Supplementary Instructions on recovery of dues in Central Excise Manual which states that :- 1.1 In the event the Government dues are not paid, the law provides the recovery thereof. For the recovery of dues action is to be taken under Section 11 of the Central Excise Act. After exhausting the option of taking action as above, if dues remain un-recovered, action is to be taken under the provisions of Section 142 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unter reply vide even No. dated 18-5-2010 in response to which from the Respondents side Sh. Kamaljeet Singh Advocate while terming the impugned order-in-appeal as legal proper further reiterated the submissions made in his written reply dated 10-6-2010. Following submissions are made :- 5.1 It is submitted that on the date when the impugned order was passed by the ld. Commissioner (Appeals), there was a stay by Hon ble CESTAT against the recovery of dues confirmed vide order-in-original No. 11/2008 dated 29-2-2008. If the rebate claims are adjusted against the said demand, it would amount to recovery of the Government dues even though there is stay order against this recovery. This is clearly not permissible as it would amount to disre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... carefully gone through the relevant case records and perused the impugned order-in-original and order-in-appeal. 8. Government notes that this case matter involves a dispute that as to whether the department can effect recovery of confirmed demands at the time when the stay already granted stood expired and no further orders for extension or otherwise for the required stay were not in existence. In this case such sanctioned rebate amounts were appropriated under Section 11 of Central Excise Act, 1944 and further in view of C.B.E.C. Circular No. 788/21/2004-CX., dated 25-5-2004 for those confirmed demands which were payable by the Respondent-party herein. 9. Government also notes that it is a fact on record that the Hon ble Tribunal vid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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