TaxTMI 
TaxTMI 
2023 (2) TMI 834
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....the basis of which the Learned Commissioner (appeals) has granted the refund has been challenged by the revenue before the Hon'ble Gujarat High Court, these appeals were filed by the revenue. He submits that since the demand issue is pending before the high court, the stay from the order of the commissioner (appeals) be granted. 4. Shri Naresh Satwani, Learned Consultant appearing on behalf of the revenue submits that though the department has challenged the order of this Tribunal but no stay has been granted by the Hon'ble High Court. Therefore, the learned Commissioner (appeals) has rightly granted the refund on the basis of this Tribunal's order. 5. We have carefully considered the submission made by both the sides and perused the records. We find that the Learned Commissioner (appeals) has granted the refund in pursuance to this Tribunal's order No. A/10788/2020, dated 12.03.20, whereby on merit the demand of cost recovery charges was set aside. Hence this refund is consequential relief to the afore said Tribunal's order. Though the revenue has challenged the order of this tribunal before the High Court but, since there is no stay, the order of the Commissioner (Appeals) cann....
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....ourt Registry, the SLPs/Stay Applications filed in the Supreme Court are listed for hearing in their own turn according to the dates of their filing. However, in case of urgency, there is a procedure of mentioning before the bench headed by the Chief Justice of India for ad interim stay till the stay application is heard and disposed of by the Supreme Court. For this purpose, the Central Agency Section is requested to file an application with the Registrar of the Supreme Court giving reasons justifying out of turn hearing of the stay application. In case the Registrar is satisfied about the urgency, the application is included in the "list of cases for urgent mentioning" and it is then possible to mention the case on the following day before the bench headed by the Chief Justice of India. In view of the aforesaid procedure, it may not be possible to move the Supreme Court for out of turn hearing of stay applications in every case in a routine way. We will have to justify the urgency and serious implications 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 ensuri....
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....(2) Cases where Civil Appeal (CA) is proposed against adverse decision of the CEGAT involving high refund and or release of seized/confiscated goods. The guidelines applicable to SLPs mentioned above should be followed mutatis mutandis even in such cases involving Civil Appeals/Stay Petitions. The relevant papers relating to Civil Appeals should be sent latest within 2 weeks of the receipt of CEGAT Order and active liaison should be kept with the concerned senior officer in the Board and even Central Agency Section till the Department's Stay/CA petitions is heard and decision given by the Apex Court. Where considered advisable, considering the stakes involved conversant officer to be deputed for briefing the Senior Counsels/Law Officer who may be moving for stay petition. (3) The cases where refund arises due to order of Commissioner (Appeals) or Commissioner of Central Excise/Customs and decision is taken to contest them before CEGAT. In such cases appeal/stay application should be filed expeditiously well before the expiry of stipulated period of three months (and not waiting for the last date of filing of appeal). However, no refund/rebate claim should be withheld on th....
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....3-CX., dated 24-2-2003 F. No. 268/38/2000-CX.8 Government of India Ministry of Finance (Department of Revenue) Central Board of Excise & Customs, New Delhi Subject: Central Excise and Customs - Disposal of refund/rebate claims where Special Leave Petition/Civil Application along with stay application is pending at Supreme Court - Regarding. I am directed to refer to clauses (1) and (2) of Board's Circular No. 572/9/2001-CX., dated 22-2-2001 [2001 (129) E.L.T. T7] which inter alia provides that in cases where the Department has filed Special Leave Petition/Civil Application along with stay application against the adverse order of High Court/CEGAT as the case may be, no unilateral action should be taken by the Commissioners to release goods/order refund and decision in such cases where stay order is not forthcoming, should be taken only in consultation with the Board. In this connection, a number of references from field formations have been received. 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....
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..... But learned counsel for the assessee-respondent submitted that paragraph 11 of Dhiren Chemical's case (supra) operates in its favour. It reads as under : "We need to make it clear that regardless of the interpretation that we have placed on the said phrase, if there are circulars which have been issued by the Central Board of Excise and Customs which place a different interpretation upon the said phrase, that interpretation will be binding upon the Revenue." 2. It was noted by the three-Judge Bench that the effect of the aforesaid observations was noted in several decisions. In Kalyani Packaging Industry v. Union of India and Anr. [2004 (6) SCC 719], it was noted as follows: "We have noticed that para 9 (para 11 in SCC) of Dhiren Chemical case [2004 (6) SCC 722] is being misunderstood. It, therefore, becomes necessary to clarify para 9 (para 11 in SCC) of Dhiren Chemical case [2004 (6) SCC 722]. One of us (Variava, J.) was a party to the judgment of Dhiren Chemical case and knows what was the intention in incorporating para 9 (para 11 in SCC). It must be remembered that law law laid down by this Court is law of the land. The law so laid down is binding on all courts/trib....
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....by the Board are not binding on the assessee but are binding on revenue authorities. It was submitted that once the Board issues a circular, the revenue authorities cannot take advantage of a decision of the Supreme Court. The consequences of issuing a circular are that the authorities cannot act contrary to the circular. Once the circular is brought to the notice of the Court, the challenge by the revenue should be turned out and the revenue cannot lodge an appeal taking the ground which is contrary to the circular. 6. Circulars and instructions issued by the Board are no doubt binding in law on the authorities under the respective statutes, but when the Supreme Court or the High Court declares the law on the question arising for consideration, it would not be appropriate for the Court to direct that the circular should be given effect to and not the view expressed in a decision of this Court or the High Court. So far as the clarifications/circulars issued by the Central Government and of the State Government are concerned they represent merely their understanding of the statutory provisions. They are not binding upon the court. It is for the Court to declare what the particula....