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TMI Blog2023 (6) TMI 1239X X X X Extracts X X X X X X X X Extracts X X X X ..... e authority that Appellant is not entitled to refund of Cenvat credit of Sugar cess even when the Tribunal vide Final Order No. 76353/2019 dated 07.08.2019 has already held that the Appellant was eligible to claim Cenvat credit of the same on the ground that the said order of the Tribunal has been appealed by the department before the Hon'ble High Court and the matter is pending and thus the refund cannot be sanctioned in such cases. It was also held by the Ld. Appellate authority that judgment of the COMMISSIONER OF C. EX., CUS. & S.T., BELGAUM Versus SHREE RENUKA SUGARS LTD. 2014 (302) E.L.T. 33 (Kar.) has not attained finality has the same has been admitted by way of SLP before the Hon'ble Supreme Court of India and the same is also pend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ST & CX/2017-18 dated 04.03.2019 on the only ground that the matter is pending and has not attained finality. The appellant preferred an appeal before the first appellate authority with regard to the OIO dated 04.03.2019 and the Ld. First Appellate Authority rejected the claim of the appellant and upheld the OIO dated 04.03.2019 albeit on new grounds which was never an allegation in the SCN issued by the department for rejection of the refund claim. Thus the present appeal by the appellant. 3. Heard both sides and perused the appeal records. 4. At the outset, we note that the Ld. DR had raised the issue that this Tribunal is not competent to hear the present appeal having regard to the judgment of the Tribunal in ST/40010/2020 vide Interi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant on the ground of pendency of proceedings when no stay has been given by any higher court in the earlier order regarding eligibility of Cenvat credit. In this regard we rely upon the CBIC Circular CBIC Circular No. 572/9/2001-CX dated 22.02.2001 wherein the subject matter related to Central Excise & Customs - Disposal of refund/rebate claims where application is pending at appellate level - Instructions - Regarding. The CBIC had clarified as below: "(1) Cases where it is considered advisable to contest an adverse High Court's Judgement, inter alia, involving substantial refund or release of any seized/confiscated goods by filing Special Leave Petition (SLP) including Stay Application, in the Hon'ble Supreme Court. 1. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lications if the adverse order is not stayed. It may also not be always possible to get our applications listed according to our wish. The Commissioners should, therefore, while ensuring submission of proposals for SLP/Stay on top priority basis also take steps simultaneously so that non-implementation of the High Court's Order without obtaining stay from the Supreme Court does not create complications. In such cases, therefore the following action is advised :- 1. Where a High Court has stipulated any time limit for implementation of its order, the Customs House/Central Excise Commissionerate apart from taking steps for filing SLP/Stay Petition before the deadline, as mentioned in para (a) above, should simultaneously file an applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ultation with our Counsels in the field, and Law Ministry, to file SLP/Stay Application before the Apex Court against the order of the High Court and till this is pending decision before the Apex Court. The decision in such cases where there is any urgency & stay of Apex Court is not forthcoming, should be taken only in consultation with the Board." The above Circular stood amended by issuance of circular No. 695/11/2003-CX dated 24.02.2003 wherein it was stated as- "2. Board has examined the matter. It is observed that the above guidelines requiring consultation with Board in such cases dilute the legal position that the order of High Court/Tribunal should be implemented unless a stay has been obtained from the higher judicial forum on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollowed in the case, unnecessary litigation as well as adverse observation of the Hon'ble High Court could have been avoided. This circular is once again brought to the notice of field officers with direction that it is followed scrupulously. The judgment of Hon'ble High Court in M/s. Dupont case (supra) under reference may be perused by the field officers for complete understanding of the issues involved and directions of the Hon'ble High Court on need to follow judicial discipline. Judgment of the Hon'ble Supreme Court in case of Union of India v. Kamlakshi Finance Corporation Ltd. [1991 (55) E.L.T. 433 (S.C.) = 2002-TIOL-484-SC-CX-LB] may also be perused as this is an authoritative pronouncement on the issue and has also been cited by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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