1991 (2) TMI 267

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....ome up for hearing on 17th January, 1991 and vide miscellaneous order No. 23/91-D dated 17th January, 1991 the Bench had given one month's time to obtain information from the Collector whether any appeal has been filed and if so whether any stay has been granted or not. Thereafter, the matter had come up for hearing on 20th February, 1991 and the matter was adjourned for today. Shri Jain argued that the mere fact that the revenue has filed an appeal before a higher forum cannot justify the withholding of the refund unless a stay has been granted by the higher forum. In support of his argument, he has referred to the following judgments :- (1) (1990) 79 STC 38 (Madras High Court) Senthil Raja Metal v. Commercial Tax Officer, South Avani M....

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.... Sugar Mills Ltd. v. Collector of Central Excise, Moradabad and others reported in 1986 (25) E.L.T. 488 (Allahabad) had held that mere filing of appeal and stay petition does not entitle the Department to refuse the amount of refund unless stay order is obtained. Para No. 4 from the said judgment is reproduced below : - "4. In view of the fact that mere filing of an appeal does not result in staying the proceedings, it did not entitle the respondent to refuse to refund the amount which it was bound to do on account of the allowing of the appeal on 28th June, 1984. Therefore, we are unable to uphold the contention of the counsel appearing for the respondents. Till a stay order was obtained by the respondents, mere filing of the appeal bef....