TMI Blog2015 (1) TMI 633X X X X Extracts X X X X X X X X Extracts X X X X ..... weeks upto 18.01.2013. However, the CESTAT has not vacated the stay. Applicant has claimed to have deposited the said amount on 31.12.12. Recovery proceedings cannot be initiated during the pendency of stay application. As such, original authority has erred in ordering recovery of said amount ignoring the factual position as discussed in above para. Government finds that stay against order of Commissioner of Central Excise was still in force at the time of appropriation of sanctioned rebate claims vide impugned Order-in-Original. Hence, the order of appropriation by original authority is not legal and proper and liable to be set aside on this account alone. In view of above position, Government sets aside impugned Order-in-Appeal and dir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll relevant documents. The Deputy Commissioner Tirupur Division vide impugned Order-in-Original No. 183/2012 R(DC) dated 8.11.12 sanctioned the rebate but appropriated the said amount against demand of duty confirmed by Commissioner of Central Excise vide Order-in-Original No. 09/2010 (Commr) dated 23.13.2010. Aggrieved applicant had filed an appeal with stay petition before the Hon'ble CESTAT/Chennai against above said order dated 23.13.2010 of Commissioner. The Hon'ble CESTAT vide stay order Nos. 711-713/2012 dated 01.08.12 directed the applicants to make a pre-deposit of 50% of the duty confirmed within 8 weeks and the compliance to be reported on 04.10.12. Since the applicants had not paid the entire amount as directed by the Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... granted a further date for payment in cash, being disagreeing with payment through CENVAT Credit account by the applicants. This was done considering the point raised by the departmental representative. Superintendent (AR) who had insisted upon early payment, as recorded in the order of Hon'ble Tribunal. But, most surprisingly, without paying any heed to order of Hon'ble Tribunal the respondent department had initiated the process of recovery by appropriating whatever rebate amount was sanctioned to the applicants vide Order-in-Original No. 183/2012-R-(DC), on 08.11.12, as passed by Deputy Commissioner, Tirupur Division. 4.2 The above quoted order by Hon'ble CESTAT was proclaimed on 13.12.2012, in the presence of Superintende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Order alone, both impugned Order-in-Original Order-in-Appeal as passed by the lower authorities are not appropriate, just proper. And hence need to be modified, without any recovery order therein. 4.4 Without prejudice, and in addition to the aforesaid, the applicants most humbly wish to state that law is settled now as when an appeal is filed with a stay order, the authority should not proceed towards recovery in an arbitrary manner. The recent CBEC Circular No. 967/01/2013-CX related to 'Recovery of confirmed demand during pendency of stay application comes under severe criticism by various High Courts. (a) Hon'ble Gujarat High Court Order in [2013(290) ELT 161 (Guj.)] (b) Hon'ble Mumbai High Court Order in [201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8.1 Applicant had filed compliance report before CESTAT which was objected by Superintendent (AR) as the amount was debited from CENVAT account. Hon'ble CESTAT vide order dated 13.12.12 directed the applicant to deposit said amount in cash. It means that upto 13.12.12, the stay application/order remained under consideration of CESTAT and respondent department hastened to order recovery of Government dues vide order dated 08.11.12 ignoring the cash deposit of ₹ 25.00 lakh and debit in cenvat credit account. Moreover department has not given any chance the applicant to clarify his position before ordering appropriation of sanctioned rebate claim against confirmed demand. Such order is against principles of natural justice. 8.2 Go ..... X X X X Extracts X X X X X X X X Extracts X X X X
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