TMI Blog2016 (4) TMI 781X X X X Extracts X X X X X X X X Extracts X X X X ..... rder of the Tribunal. This is a novel way of taking over the adjudication and recommencing it when the earlier exercise ended completely in an order favourable to the Revenue but subject matter of Appeal. This is a clear case where the principle of matter being sub-judice would apply. The impugned order, passed in the present Petition and the observations cannot be utilized and to nullify, therefore, an order of stay which binds the Revenue. The powers if at all available could not have been exercised in this case and to subvert the order of stay and the Appeal which is pending, as a whole. This novel way of adjudication and mid-way during the pendency of legal proceedings before higher forum enables us to interfere in our writ jurisdic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , namely, ₹ 2,38,57,646/-. 4. The Tribunal has passed an order on this stay application. 5. In the initial order passed on 22nd October 2012, which is at page 30, the Tribunal waived the condition of pre-deposit and stayed the recovery of taxes during the pendency of the Appeal. That was done in the exercise of inherent powers of the Tribunal and later on that order came to be confirmed. 6. What we have found thereafter is that the 3rd Respondent on 17th September 2015 sanctioned the claim of rebate of duty which was paid by the Petitioners on the goods exported as above to the extent of ₹ 1,49,43,056/- in cash and ₹ 8,77,787/- by way of credit that is available in the Cenvat Register maintained by the Respondents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n indirect manner. Now, the very order which was passed earlier and which is under challenge is enforced by a back door or indirect method. In such circumstances, all the legal rights of the Petitioners now are in jeopardy. 11. After such a complaint was made by Mr. Shah for the Petitioners and a compilation was handed over, what Mr. Jetly initially sought was an adjournment to take instructions, but he stated that he would be able to obtain instructions today itself. 12. At the request of Mr. Jetly, we posted this matter after recess. Post-recess Mr. Jetly would submit that the Respondent No. 3 has relied on a judgment of this Court in India Steel Works v. Union of India 2014 (306) E.L.T. 296 Bom. in passing the impugned order. 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued but by three orders the Assistant Commissioner sanctioned the claim of refund. While sanctioning the rebate claim of the Petitioners before this Court, the Assistant Commissioner directed appropriation against confirmed dues recoverable in pursuance of the order-in-original. The Superintendent of Central Excise was calling upon the Petitioners to pay the sums and that is how the matter was brought before this Court. 18. In the backdrop of the admitted facts, in paragraph 6 this Court observed that the Revenue is not seeking to initiate recovery proceedings on the expiry of a stay. The Revenue is seeking to exercise its powers under Section 11 and by making an adjustment. Paragraph 6 of this decision reads as under:- 6. In the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proviso to Section 35C(2A) of the Act as found in the third proviso to Section 254(2A) of the Income Tax Act dismissed the revenue's appeal before it by upholding the view of the ITAT that even after the introduction of the above third proviso, the ITAT can extend the stay. 19. We are unable to see how this principle and which is evolved in this case by the Division Bench has a universal application or dehors the factual conspectus. It would all depend on the facts and circumstances of each case and the nature of the power exercised by the Revenue. 20. Before us the Revenue had passed an original order. That confirmed a certain demand. That order was challenged in Appeal before the Tribunal and to the extent the Petitioner disp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assistant Commissioner by law, therefore, we cannot sustain such an order and consider it our duty to correct it in exercise of our writ jurisdiction. 22. The impugned order, passed in the present Petition and the observations in paragraph 10 cannot be utilized and to nullify, therefore, an order of stay which binds the Revenue. The powers if at all available could not have been exercised in this case and to subvert the order of stay and the Appeal which is pending,as a whole. This novel way of adjudication and mid-way during the pendency of legal proceedings before higher forum enables us to interfere in our writ jurisdiction. 23. As a result of the above discussion, the Writ Petition succeeds. The impugned order is quashed and set ..... X X X X Extracts X X X X X X X X Extracts X X X X
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