9911796707
TMI Blog2017 (12) TMI 900X X X X Extracts X X X X X X X X Extracts X X X X ..... out of Order in Original passed by the Commissioner. 2. Brief facts are as under:- 2.1 By the order dated 17/19.02.2009, the Commissioner confirmed the duty demand against the company with interest and penalty. Personal penalty on the petitioner, who was Director of the company, was also imposed. All the noticees of the show cause notice leading to the said order had preferred separate appeals before the CESTAT. They had also prayed for stay pending the appeals. By common order dated 04.04.2011, CESTAT provided that:- "8. Having observed the prima-facie nature of the matter in respect of all the three imputations, and having held in respect of the imputation No.2 that the appellant has not been able to make out a good prima facie case i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompany. 2.3 It is an admitted position that the company failed to deposit such amount and consequently, company's appeal has also been dismissed by the Tribunal. It is in this background that the Department initiated recovery proceedings against the present petitioner. 3. Counsel for the petitioner vehemently contended that the appeal of the petitioner is still pending before the Tribunal. Stay has not been vacated. Recovery pending appeal, therefore, initiated by the Department is improper and impermissible. He relied on the decision of Division Bench of Punjab & Haryana High Court in case of PML Industries Ltd. Vs. Commissioner of Central Excise, reported in 2013 (209) ELT, 3, which judgment, he pointed out, was confirmed by the Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eration of interim protection of pre-deposit and stay pending appeal before the Tribunal, the petitioner ought to have questioned the composite order passed by the Tribunal. Not having done that, the petitioner now cannot turn around and criticize the order of the Tribunal or claim immunity from recovery on the ground that the petitioner cannot be penalized for misfeasance of the company. The judgment of the Punjab & Haryana High Court in case of PML Industries Ltd. (supra) was rendered in entirely different background. The question therein was the effect of statutory provision which provided that if the Tribunal failed to hear appeal within 180 days, the stay granted earlier would stand automatically vacated. 6. In the result, petition is ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
