2002 (1) TMI 102

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....essee under his earlier order dated 27-1-98. The assessee preferred appeal against the Assistant Commissioner's order dated 4-9-2000 to the Commissioner (Appeals) on the ground that the order dated 27-1-98 was under appeal to the Commissioner (Appeals) and that their stay application was also pending before the appellate authority and, therefore, appropriation of the refundable amount of Rs. 94,080/- towards the duty confirmed under order dated 27-1-98 was unwarranted. The lower appellate authority allowed the assessee's appeal (against the A.C.'s order dated 4-9-2000) on the ground that operation of the Board's Circular on the strength of which the above demand of duty had been confirmed by the Assistant Commissioner had been stayed by the....

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....e appeal filed by them against the Assistant Commissioner's order of confirmation of duty demand was pending before the Commissioner (Appeals) and their application for stay of operation of the Assistant Commissioner's order was also pending before that authority. As the duty amount was not recoverable or payable, the adjustment made by the Assistant Commissioner was not warranted under Section 11 of the Act. The CA has drawn support to this plea from the decision of the M.P. High Court (Indore Bench) in National Steel Industries Ltd. v. Union of India [2001 (134) E.L.T. 616 (M.P.)]. He urges that the Revenue's appeal be rejected. 5. Examined the submissions. It is not in dispute that the Assistant Commissioner's order dated 27-1-9....

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.... deduction under Section 11 of the Act during the pendency of the assessee's appeal and stay application before the statutory appellate authority is a coercive action. The Circular only meant that the duty was not recoverable from the assessee when their appeal and stay application were pending. Therefore, it cannot be said that the Board's Circular is in conflict with Section 11 of the Act. On the other hand, it was binding on the Assistant Commissioner. Furthermore, the High Court of M.P., in the cited case has specifically held that, when an order passed by an adjudicating authority confirming a demand of duty against an assessee is under challenge in appeal before the Commissioner (Appeals) and also the assessee's application for stay i....