2021 (3) TMI 838

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....ated 12.10.2020 at Annexure-D issued by the 3rd respondent and the recovery notice dated 09.12.2020 at Annexure-F. Further direction is sought to the respondents not to take any coercive action in light of the pendency of the appeal. 2. Petitioner submits that as against the order of the Commissioner of Central Taxes (Appeals-1), an appeal has been preferred before the Customs, Central Excise and Service Tax Appellate Tribunal on 08.01.2021 as is evident from Annexure - H2. It is further submitted that along with an appeal, there has been remittance of 10% of the disputed amount as more fully detailed in Column No.14 of Form No.ST-5. 3. Learned counsel for the petitioner submits that in light of the Board Circular (Compilation at Sl.N....

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....epartment, recovery action for the amount over the above the amount deposited under the provisions of Section 35F/129E may be initiated unless the order of the Tribunal is stayed by the High Court/Supreme Court. The recovery in such cases, would include the interest at the specified rate, from the date duty became payable, till the date of payment." 5. Relevant portion of Circular dated 10.03.2017 at paragraph No.20.2(iv) is extracted hereinbelow "Section 35F of the Central Excise Act, 1944 has been amended with effect from 06.08.2014 to provide for mandatory payment of 7.5% or 10% of the duty demanded where duty demanded is in dispute or where duty demanded and penalty levied are in dispute for admission of appeal before Commis....

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....as passed on 23.10.2019, the impugned order was not communicated till 17.12.2020 and from such date of communication, the appeal is filed within time and in fact, the appellate order also accepts such contention. No doubt, there is some force in the submission of learned counsel for the respondent that the recovery notice was issued on 09.12.2020, though the same came to be effectuated belatedly. However, it is only a technical contention taken by the petitioner. In light of the order passed by the appellate authority on the application for condonation of delay in the appeal, whereby the appellate authority has rejected the assertion of the Department as regards delivery of notice on 30.10.2019 as the notice was not in requisite Form i.e., ....