TaxTMI 
TaxTMI 
TaxTMI 
2016 (4) TMI 781
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....s stayed by the Appellate Tribunal be set aside. 2. Very few facts are necessary to appreciate the arguments of the Petitioners' counsel. The Petitioners, inter alia, export various engineering equipments and machinery. They cleared excisable goods for export on payment of duty of Rs. 1,58,20,843/- on 13th February 2015 and then claimed the rebate. An order-in-original was passed on 25th May 2012 denying the credit of service tax paid on input service to the extent of Rs. 2,38,57,646/- which, according to the Petitioners, is used in providing taxable service. 3. Being aggrieved and dissatisfied with this order-in-original, they filed an Appeal in the Customs, Excise and Service Tax Appellate Tribunal ("Tribunal") and sought waiver of ....
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.... impugned order dated 19th January 2016. 9. Mr. Shah appearing on behalf of the Petitioners would submit that the impugned order is ex facie without jurisdiction, arbitrary and untenable in law. 10. The Assistant Commissioner, viz., Respondent No. 3 may not have been prevented from considering any request for rebate and sanctioning it but he was certainly not empowered to adjust the sum under dispute and by this indirect process. This would mean that a pending Appeal before the Tribunal and a stay order passed therein is rendered infructuous. After the initial order was passed, viz., order-in-original was challenged in Appeal before the Tribunal and which Appeal is pending. Having been aware of that Respondent No. 3 could not have been gi....
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..... Jetly. 16. India Steel (supra) was a case where a Division Bench of this Court was approached in a Writ Petition under Article 226 of the Constitution of India. The Petitioners before that Court faced certain investigation proceedings for alleged refund of central excise duty. In the course of investigation, the Petitioners deposited Rs. 20,00,000/-. Thereafter, a show-cause notice was issued and that was adjudicated. The Central Excise Commissioner confirmed the duty demand of Rs. 53,53,452/-. That is how the Petitioner/ assessee approached the Tribunal and they filed applications for dispensation of the condition of pre-deposit and stay. The Tribunal disposed of those applications and passed an order of dispensation. 17. An extension ....
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....uirement of pre-deposit of duty and penalty under the proviso to Section 35F of the Act for the purposes of hearing the appeal could at the highest be said to restrain the revenue from taking any coercive action for recovery but would not estop the revenue from adjusting amounts which become subsequently due to the petitioner towards the amount payable by the petitioner to the department. Besides, introduction of the third proviso to sub-section (2A) of Section 35C of the Act introduced in 2013 would appear to dilute the applicability of the decision relied upon by the petitioner. However, it must be pointed out that a Division Bench of this Court in CIT v. Ronuk Industries Ltd. - (2011) 333 ITR 99 while dealing with an identical provision ....
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....lier exercise ended completely in an order favourable to the Revenue but subject matter of Appeal. This is a clear case where the principle of matter being sub-judice would apply. The judgment and order in the India Steel is of no assistance, therefore, to Mr. Jetly. 21. Beyond that we do not find any reasoning in the impugned order. There is only a reproduction of the observations, particularly in paragraph 6 of the judgment in India Steel. The power and to make adjustment which is exercised in the present case is unavailable on that reasoning, once India Steel was wholly distinguishable on facts. In the process of a power which is assumed by the Assistant Commissioner and erroneously has resulted in acting beyond the jurisdiction vested ....