CBEC has amended the procedure of initiation of recovery proceedings against a confirmed demand in the following  manner:
1. Where NO appeal is filed with  Commissioner (Appeals)/ CESTAT Recovery to be initiated after the expiry of statutory period for filing appeal i.e. 60 days / 90 days.
2. Where an appeal is filed with Commissioner (Appeals)/ CESTAT, WITHOUT a stay application Recovery to be initiated after filing of such appeal, without waiting for the statutory period of filling an appeal to be exhausted.
3. Where an appeal is filed WITH a stay application with Commissioner (Appeals)/ CESTAT Recovery to be initiated 30 days after the filing of appeal, if no stay is granted, otherwise as per the conditions of the stay order.
4 (i) Where Commissioners (Appeals) confirms demand in the order in original or

(ii) Tribunal or High Court confirms the demand, with no stay in  operation.

Recovery proceedings will be initiated IMMEDIATELY.
These guidelines have been issued on the basis of the decision of Hon’ble Supreme Court in the case of Collector of  Customs, Bombay Vs Krishna Sales (P) Ltd [1994 (73) E.L.T 519 (S.C)]
Consequential amendments have been made on the above subject in CBEC’s Excise Manual of Supplementary Instructions and the related circulars issued on the above subject have been rescinded.
Note : It may be noted that recently, Andhra Pradesh High Court has granted an interim stay against this Circular in the WPMP No. 873 of 2013 in WP No. 730 of 2013 on 09.01.2013.

Circular No.  967/01/2013 – CX,  New Delhi, the Dated 1st January, 2013

Subject Recovery of confirmed demand during pendency of stay application- regarding

I am directed to bring your attention to the following circulars issued from time to time on the above issue and to state that it has been decided to rescind these circulars with immediate effect.

Sl No

Date

Circular no and File number of CX-6

1

18-11-88

80/88 and 208/31/88

2

2-3-90

7/90 and 208/107/89

3

21-12-90

23/90 and 209/107/89

4

12-11-92

16/92 and 208/59/92

5

3-8-94

47/47/94 and 208/33/94

6

2-6-98

396/29/98 and 201/04/98

7

25-2-2004

788/21/2004 and 208/41/2003

2) Henceforth, recovery proceedings shall be initiated against a confirmed demand in terms of the following order –

Sl No

Appellate Authority

Situation

Directions regarding recovery.

1

NIL

No appeal filed against a confirmatory order in original against which appeal lies with Commissioner (Appeals). Recovery to be initiated after expiry of statutory period of 60 days for filing appeal.

2

Commissioner

(Appeals)

Appeal filed without stay application against a confirmatory order in original. Recovery to be initiated after such an appeal has been filed, without waiting for the statutory 60 days period to be exhausted.

3

Commissioner

(Appeals)

Appeal filed with a stay application against an order in original. Recovery to be initiated 30 days after the filing of appeal, if no stay is granted or after the disposal of stay petition in accordance with the conditions of stay, if any specified, whichever is earlier.

4

NIL

No appeal filed against an Order in Original issued by the Commissioner. Recovery to be initiated after expiry of statutory period of 90 days for filing appeal from the date of communication of order.

5

CESTAT

Appeal filed without stay application against an Order in Original issued by the Commissioner. Recovery to be initiated on filing of such an appeal, without  waiting for the statutory 90 days period to be exhausted.

6

CESTAT

Appeal filed with a stay application against an Order in Original issued by the Commissioner. Recovery to be initiated 30 days after the filing of appeal, if no stay is granted or after the disposal of stay petition in accordance with the conditions of stay, if any, whichever is earlier.

7

NIL

No appeal filed against an Order in Appeal issued by a Commissioner (Appeals) confirming the demand for the first time. Recovery to be initiated after expiry of statutory period of 90 days for filing appeal from the date of communication of order.

8

CESTAT

Appeal filed without stay application against an Order in Appeal confirming the demand for the first time. Recovery to be initiated on filing of such an appeal in the CESTAT, without waiting for the statutory 90 days period to be exhausted.

9

CESTAT

Appeal filed with a stay application against an Order in Appeal confirming the demand for the first time. Recovery to be initiated 30 days after the filing of appeal, if no stay is granted or after the disposal of stay petition in accordance with the conditions of stay, if any, whichever is earlier.

10

CESTAT

All cases where Commissioner (Appeals) confirms demand in the Order in original. Recovery to be initiated immediately on the issue of Order in Appeal.

11

 

High Court or Supreme Court

Tribunal or High Court confirms the demand. Recovery to be initiated immediately on the issue of order by the Tribunal or the High Court, if no stay is in operation.

 3) It may be noted that a confirmed demand remains an order in operation till it is stayed. Mere preferment of appeal itself does not operate as a stay. Hon’ble Supreme Court in case of Collector of Customs, Bombay Vs Krishna Sales (P) Ltd [1994 (73) E.L.T 519 (S.C)] has observed that “As is well known, mere filing of an Appeal does not operate as a stay or suspension of the Order appealed against”. Accordingly, the above directions are hereby issued for initiating recovery of the confirmed demands.

4) Instructions in CBEC’s Excise Manual of Supplementary instructions on the above subject or any other circular, instruction or letter contrary to this circular stand amended accordingly.

Yours faithfully,

(V.P. Singh)

OSD (CX-6)

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Posted Under

Category : Excise Duty (4040)
Type : Circulars (7454) Notifications/Circulars (29873)

0 responses to “Recovery of confirmed demand during pendency of stay application”

  1. Rakesh K says:

    Probabaly the Government had ran out of means to mobilise funds / reduce fiscal deficit. This seems to be one such attempt before the close of the financial year.

    The government has to first ensure the following :-
    1. That the Appellate authority disposes of all Appeals within 30 days.
    2. Where ever a refund arises in consequence to an Appellate order the Department should be compelled to refund within 30days ( if no appeal prefferred)and the Appelate authority to ensure compliance.

    After the above is legislated , the circular is justifiable or else only one sided. The circular also depicts the highhandedness of the CBEC/Government;

    VODAFONE case has shown that even the SC decision can be circumvented.

    regards

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