Court sets aside Order in Original, grants stay against respondent, relies on Customs Board Clarification

The Court allowed the writ appeal, setting aside the impugned Order in Original, with no order as to costs. An interim stay was granted against the 3rd respondent's order until a specified date to prevent irreparable injury to the appellant. The Court relied on a Clarification by the Central Board of Excise & Customs, concluding that the order in original did not survive. The Revenue's argument was rejected, and the matter was left for the Revenue to proceed further if necessary. The legal proceedings were concluded with the closure of the connected miscellaneous petition.

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Issues:
Challenge to order dismissing writ petition to quash Order in Original, Stay of operation of order, Contravention of CENVAT Credit Rules, Adjustment of wrongly received amount, Interim stay against order, Clarification by Central Board of Excise & Customs, Setting aside impugned order.

Analysis:
The writ appeal challenged the order dismissing the writ petition seeking to quash the Order in Original. The appellant filed a petition under Section 151 seeking a stay of the order till the disposal of the writ appeal. The appellant's counsel highlighted the contravention of CENVAT Credit Rules by taking credit on duty paid on exempted goods. The appellant had paid a significant amount to the Commissioner of Central Excise, which was demanded by the 3rd respondent. The appellant argued that the wrongly received amount should be adjusted or returned. The Court noted that both the 3rd respondent and the Commissioner of Central Excise were part of the same department and should adjust the amount. The Court granted an interim stay against the 3rd respondent's order until a specified date to prevent irreparable injury to the appellant.

In response to a counter affidavit opposing the prayer, the appellant's counsel referred to a Clarification by the Central Board of Excise & Customs, stating that the order in original did not survive. The Revenue's counsel argued that an appeal should have been filed against the order in original. However, based on the Clarification by the Central Board of Excise & Customs, the Court did not accept the Revenue's contention. Consequently, the impugned order in Original was set aside, leaving it to the Revenue to proceed further if necessary.

In conclusion, the writ appeal was allowed, setting aside the impugned order, with no order as to costs. The connected miscellaneous petition was closed, concluding the legal proceedings.

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