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TMI Blog2014 (1) TMI 1472X X X X Extracts X X X X X X X X Extracts X X X X ..... rebate claims being sanctioned against confirmed duty demand recoverable in pursuance of order dated 31 July 2006 which has not been stayed; and (ii) Notice dated 27 November 2013 issued by respondent No.3 i.e. Superintendent of Central Excise, seeking after the above appropriation to recover the balance amount of penalty from the petitioner-company its two Directors. 2. The facts of the present case leading to the petition are as under: - (i) Investigation were initiated against the petitioner alleging evasion of central excise duty. During the course of investigation, the petitioner had deposited an amount of Rs.20 lakhs towards the alleged duty demand. Consequent to investigation,a show cause notice dated 30 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 012 and in view of proviso of Section 35C(2A) of the Central Excise Act, 1944 (the Act) the said stay order remained effective till 24 February 2013; (vi) We are informed that the petitioner filed another application for extension on 22 November 2013 and the same is pending before the Tribunal. In the meantime, between 23 August 2013 to 16 October 2013, petitioner had made various applications to the respondents for rebate of duty paid in respect of goods which were exported under various shipping bills; (vii) By the three ordersone dated 11 November 2013 and two dated 21 November 2013, the Assistant Commissioner of Central Excise sanctioned the petitioner's rebate claims aggregating to Rs.87,05,330/. However, the above orders while sanctio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al and this delay on the part of the Tribunal in disposing of the application for extension of stay as well as the appeal is not on account of any act on the part of the petitioner. In these circumstances, it was submitted that the stay granted by the order dated 15 December 2006 should be deemed to be continued till the disposal of the appeal as held by this Court in Nedumparambli P. George v/s. Union of India 2009 (242) E.L.T. 523 and Larsen and Toubro Limited v/s. Union of India 2013 (29) S.T.R. 449 and Supreme Court in Commissioner of Customs and Excise, Ahmedabad v/s. Kumar Cotton Mills Pvt., Ltd. 2005 (180) E.L.T. 434. On the above basis, it is submitted that it should be deemed that the stay of the order dated 31 July 2006 is extende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to adjust the rebate claim granted to the petitioner against the dues of the petitioner under the Central Excise Act as it is specifically provided for in Section 11 of the Act that the proper Officer may deduct any amount payable to any person so as to adjust the same with any sum payable by the person concerned to the revenue. In view of the above, it is submitted that the petition should not be entertained. 5. We have considered the rival submissions. The decision of this Court in Nedumparambli P. George (supra) was dealing with the situation where the revenue initiated proceedings for recovery of dues on the expiry of the 180 days period provided under the Customs Act (identical provision in the said Act), pending the disposal of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d at the highest be said to restrain the revenue from taking any coercive action for recovery but would not estop the revenue from adjusting amounts which become subsequently due to the petitioner towards the amount payable by the petitioner to the department. Besides, introduction of the third proviso to sub-section (2A) of Section 35C of the Act introduced in 2013 would appear to dilute the applicability of the decision relied upon by the petitioner. However, it must be pointed out that a Division Bench of this Court in CIT v/s. Ronuk Industries Ltd. (2011) 333 ITR 99 while dealing with an identical provision to the third proviso to Section 35C(2A) of the Act as found in the third proviso to Section 254(2A) of the Income Tax Act dismissed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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