TaxTMI 
TaxTMI 
2001 (4) TMI 95
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....pending for consideration and no final order has been passed on that application for staying the recoveries and dues during the pendency of stay application or application filed before the Tribunal. The Central Board of Excise and Customs has issued guidelines for the officers of the Department to follow and deal with the guidelines for recovering the dues during the pendency of stay petition/application before the Appellate Authorities. It will be apposite to reproduce the Circular dated 2-3-1990 [Annex. 9] here-in-below : Circular No. 7/90-CX.6, dated 2-3-1990 [From F. No. 208/107/89-CX. 6] Government of India Central Board of Excise & Customs New Delhi Subject : Central Excise - Recovery of dues during pendency of stay ....
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....he Circular Annexure 10 reads as below : Circular No. 392/29/98-CX, dated 2-6-1998 [From F. No. 201/02/98-CX.6] Government of India Ministry of Finance (Department of Revenue), Central Board of Excise & Customs, New Delhi Subject : Central Excise - Whether coercive measures to recover duty demanded as result of adjudication till such time as the appeal/stay applications filed by the appellant has been disposed of by Commissioner (Appeals) be taken - Regarding. On the question of recovery of dues during pendency of stay application before the Commissioner (Appeals), the matter was examined by the Board and necessary instructions were issued vide Circular No. 23/90/CX.6, dated 12-12-1990 issued from F. No. 209/107/89-CX.6 and Circ....
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.... stay applications are pending before the Commissioner (Appeals). In other cases, the action for recovery be taken irrespective of the fact that the stay applications are pending before the appellate authority other than Commissioner (Appeals). In pursuance of these instructions during the pendency of stay application before the CEGAT, Superintendent, Central Excise Range, Beawar made a demand vide Annexure 11 dated 8-1-2001 upon the petitioners to deposit the amount of dues which was subject matter of appeal before the CEGAT and in respect of which an application for staying the recovery of dues during the pendency of appeal was made before the Tribunal and the same was pending for consideration before it. 4. Aggrieved with aforesaid no....
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....cular reveals that prior to issuance of this Circular the Board vide its earlier Circular dated 18-11-1988 referred to in Ex. 9 itself had issued instructions to all officers for not to proceed for recovery of demands by coercive process only for a period of three months in such cases and it was considering the suggestions for enhancing the waiting period to five months in place of three months then currently in vogue. This suggestion of extending waiting period by a strait jacket direction was not considered expedient. Instead the Board issued a broad based general direction in consonance with fairness of procedure demanded of State authorities and instructed its officers not to proceed with recovery proceedings until application for stayi....
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....nstructions as reproduced above were issued for the purposes of effecting the recoveries during the pendency of appeal and stay application before the Commissioner (Appeals) with direction to Commissioner (Appeals) to dispose of the stay application within one month from its filing as far as possible. Obviously the guidelines in the case of Commissioner (Appeals) vitally made a distinction, by directing the Commissioner (Appeals) to dispose of the application for stay within a time frame, which time frame direction was not contained in general directions which related to stay of recovery during pendency of such applications before authority superior to Commissioner (Appeals) and was governed by Statutory provisions. While no distinction has....
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....ay application or appeal has been disposed off or not. In this connection the Circular has referred to earlier instructions dated 12-12-1990 and 12-11-1992. Under these circulars it was further envisaged that if stay application was rejected by the Commissioner (Appeals) even before the expiry of three months, the recovery proceedings must be started immediately without awaiting the expiry of three months. 11. In the aforesaid scenerio keeping in view the decision of the Mumbai High Court, as in the case of Circular dated 2-3-1990 (Annexure 10) the Board issued like instructions as under Annexure 9 to all Central Excise Officers not to resort to realize dues till disposal of stay application by the Commissioner (Appeals) without presenti....