TMI Blog2018 (9) TMI 268X X X X Extracts X X X X X X X X Extracts X X X X ..... no stay application has been filed by the applicant in the matter - application dismissed. - Application No.: C/ORS/10353/2018, Appeal No. C/12094/2015-DB - M/10845/2018 - Dated:- 31-7-2018 - Mr. Ramesh Nair, Member (Judicial) And Mr. Raju, Member (Technical) For the appellant: Shri Sachin Chitnis, Advocate For the respondent: Ms. Nitina Nagori, Dy. Commr., (AR) ORDER Per: Raju This miscellaneous application has been filed by M/s TPL Plastech Ltd to restrain Revenue from encashing the bank guarantee given by them. 2. The facts of the case are that the appellants imported certain material which was found to be not eligible to the benefit of notification no. 21/2002 claimed by them. The Revenue has alleged that the appellant had mis-declared the goods. In the order of Commissioner, the benefit of Notification was denied, duty and interest was confirmed and the goods were seized. The said goods which were later provisionally released, were also held liable for confiscation and redemption fine in lieu of confiscation of ₹ 80 Lakhs was imposed. The order also directed encashment of Bank Guarantee given by the appellant at the time of provisional rele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Hindustan Platinum Pvt. Ltd 2017 (347) E.L.T. 633 where in following has been held: 5.1 It can be seen that Para 4 of the said circular only prevents the recovery of the balance amount of duty and penalty and does not talk about the recovery of other dues. The Tribunal in the case of Dee Pearls (India) Pvt. Ltd. (supra) has observed as follows: 3. Once this Tribunal has passed an order granting stay against recovery of penalties and waiving the requirement of pre-deposit of penalties, there is no question of recovery of any amount under the Head of penalties or duties from the appellants. Only the amount that the Department is entitled to recover would be the redemption fine which is covered by the bank guarantee. The bank guarantee is executed only to safeguard the quantum of redemption fine and once the duties and penalties are stayed, the right course for the Revenue is to encash the bank guarantee to the extent of the amount of redemption fine and allow the balance amount. In view of the above discussion, we find that this application has to be allowed and the concerned Commissioner is required to be directed to encash the bank guarantee to the extent of redem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall not apply to the stay applications and appeals pending before any appellate authority prior to the commencement of the Finance (No. 2) Act, 2014.] It is apparent that Section 129E does not grant any stay or puts any restrictions on the rights of Revenue to recover any amount. It merely prescribes payments of certain amounts as conditions mandatory for filing appeal in Tribunal. However, it is seen that the Government vide circular no. 984/8/2014/CUS dated 16/09/2018 puts restrictions on themselves and provides certain guidelines for recovery of amounts during the pendency of appeals. Para 4 of the said circular reads as follows: 4. Recovery of the Amounts during the Pendency of Appeal : 4.1 Vide Circular No. 967/1/2013, dated 1st January, 2013, Board has issued detailed instructions with regard to recovery of the amounts due to the Government during the pendency of stay applications or appeals with the appellate authority. This Circular would not apply to cases where appeal is filed after the enactment of the amended Section 35F of the Central Excise Act, 1944 or Section 129E of the Customs Act, 1962. 4.2 No coercive measures for the recovery of balan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayment of redemption fine cannot be avoided. 8. The decision of Hon ble High Court of Bombay in the case of My Dreams Properties also recognizes this fact. The specific issue before Hon'ble High Court in that case was if Tribunal has power to stay recovery of redemption fine. In Para 6 of the order, after analyzing the circular of CBEC, it holds as follows. 6. Hence, in view of the circular, as far as the penalty and differential duty payable under the impugned Order-in-Original are concerned, no steps can be taken to recover the balance amount till the disposal of the appeal. Thereafter, the order proceeds to hold that Tribunal has power to stay recovery of redemption fine. Thus, in other words it recognizes that a circular does not by itself prohibits Revenue from recovering the redemption fine. Para 6 of the decision clearly holds that the circular only restricts Revenue from recovering the balance duty and penalty. The discussion after Para 6 clearly holds that for the purpose of restrictions on redemption fine, a separate stay application needs to be filed which the Tribunal is empowered to entertain. 9. The appellants have argued that the decision of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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