CUSTOMS 1. Legal provisions for recovery of arrears of ... - Taxmann
CUSTOMS 1. Legal provisions for recovery of arrears of ... - Taxmann
CUSTOMS 1. Legal provisions for recovery of arrears of ... - Taxmann
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Recovery <strong>of</strong> <strong>arrears</strong> during pendency <strong>of</strong> appeal/ stay application -Clarifications<br />
Circular No.788/21/2004-CX<br />
25 th May, 2004<br />
F.No. 208/41/2003-CX-6<br />
Government <strong>of</strong> India<br />
Ministry <strong>of</strong> Finance<br />
Department <strong>of</strong> Revenue<br />
Central Board <strong>of</strong> Excise & Customs<br />
Subject:- Central Excise-Coercive action <strong>for</strong> the <strong>recovery</strong> <strong>of</strong> <strong>arrears</strong> when the appeal/stay<br />
application is pending in Tribunal -reg.<br />
I am directed to refer to Board’s Circular No. 396/29/1998-CX dated 2 nd June, 1998 on the<br />
subject <strong>of</strong> taking recourse to coercive measures to recover duty demanded as a result <strong>of</strong><br />
adjudication till such time as the stay applications have been disposed <strong>of</strong> by Commissioner<br />
(Appeals). Consequently, references have been received regarding the course <strong>of</strong> action to be<br />
taken when the stay application against the Order-in-Original passed by Commissioner is<br />
pending with the Tribunal.<br />
2. The matter has been examined. The Board has taken the following decisions:<br />
a) For cases where the appeals lie with the Commissioner (Appeals) and no stay<br />
application is filed along with the appeal, <strong>recovery</strong> proceedings may be initiated after<br />
60 days from the date <strong>of</strong> communication <strong>of</strong> the order. In respect <strong>of</strong> Orders-In –Original<br />
<strong>of</strong> Commissioners where the first appeal lies with the Tribunal and no stay application<br />
is filed along with the appeal, the a<strong>for</strong>esaid time period would be 90 days.<br />
b<br />
)<br />
Where conditional stay orders are issued specifying the time limit <strong>for</strong> fulfillment <strong>of</strong> the<br />
conditions but conditions are not fulfilled as per the directions <strong>of</strong> the Tribunal or<br />
Commissioner (Appeals), as the case may be, <strong>recovery</strong> proceedings should be initiated<br />
immediately after the lapse <strong>of</strong> the time period prescribed in the appellate stay order <strong>for</strong><br />
fulfillment <strong>of</strong> the conditions.<br />
c) In respect <strong>of</strong> stay applications pending against the Orders-In Original <strong>of</strong> the<br />
Commissioners be<strong>for</strong>e the CESTAT a view similar to Board ‘s Circular No.396/29/98-<br />
CX dated 2.6.1998 should be taken. The two provisos to Section 35C(2A) <strong>of</strong> the<br />
Central Excise Act, 1944 read as follows:<br />
“Provided that where an order <strong>of</strong> stay is made in any proceeding relating to an appeal<br />
filed under sub-section (1) <strong>of</strong> section 35B,the Appellate Tribunal shall dispose <strong>of</strong> the<br />
appeal within a period <strong>of</strong> one hundred and eighty days from the date <strong>of</strong> such order:<br />
Provided further that if such appeal is not disposed <strong>of</strong> within the period specified in the<br />
first proviso, the stay order shall, on the expiry <strong>of</strong> that period, stand vacated”.<br />
In view <strong>of</strong> the above stated legal position, the field <strong>of</strong>ficers should refrain from taking<br />
coercive action till the period <strong>of</strong> six months <strong>of</strong> filing a stay petition be<strong>for</strong>e the<br />
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