Customs, Excise and Gold Tribunal - Calcutta
Berger Paints India Ltd. vs Commissioner Of C.E. on 8 February, 2006
Equivalent citations: 2007[8]S.T.R.222
ORDER V.K. Jain, Member (T)
1. Heard Shri J.P. Khaitan, Id. Sr. Advocate for the appellants. In this case he submits that after hearing the appellants and the respondents, this Tribunal passed the stay Order on 1-4-2005 from payment of duty till further orders and prima facie, the case was covered in favour of the appellants. He submits that when the stay Order was in force, the Assistant Commissioner vide his Order dated 16-12-2005 has adjusted the amount on the plea that the appeal of the party has not been decided within 180 days from the date of stay Order i.e. 1-4-2005, the stay Order stands vacated and, therefore, the said amount of arrears is free from legal restraint and is realizable from the assessee. This amount has been adjusted from the refund amount of the appellants. The Tribunal in its Order dated 6-1-2006 has observed that this is disregard to the Order passed by the Tribunal. The Assistant Commissioner has no power/jurisdiction to sit over the judgment of the Tribunal's order. The concerned Assistant Commissioner and the respondent Commissioner were directed to remain present on 2nd February, 2006, for explaining their stand. A copy of the above Order was endorsed to the concerned Assistant Commissioner and the respondent Commissioner. The date of 2nd February, 2006, was declared a holiday and when the case was came up on 3-2-2006, the Tribunal directed the concerned Commissioner and the concerned Assistant Commissioner to remain present and to explain their case on 8-2-2006.
2. I have heard Shri Y.S. Loni, Id. JDR for the Revenue. The Id. Commissioner and the Assistant Commissioner are present today. The Assistant Commissioner submits that the concerned Assistant Commissioner is on leave. The Id. Commissioner submits that after examining and reviewing of the Order dated 16-12-2005 passed by the concerned Assistant Commissioner, they will take necessary action.
3. Heard both sides. I find that the Tribunal in this matter on 6-1-2006, has already extended the stay granted to the appellants till further orders. I find that the act of concerned Assistant Commissioner to adjust the amount of duty without taking Tribunal's Order or any Higher Court's Order, is complete irregular. If he has any grievances with the Tribunal's Order, he could have filed an appeal before any Higher Forum and since it was not taken, he could have taken the Tribunal's Order before adjusting the amount which has also not been done. This is nothing but disregard shown to the Tribunal by the concerned Assistant Commissioner.
4. It is disturbing that when the stay Order passed by the Tribunal till further order, the concerned Assistant Commissioner has resorted to coercive measures to recover the amount from the appellants by making adjustment in their refund claim. This is not permissible. It is well settled that during the appeal period or when the stay has been given to the appellants till further orders, the Revenue authorities shall not make any recovery towards the demands made in the impugned orders. In view of this, it is directed that the amount recovered from the appellant pursuant to the Order impugned herein shall be restored to them within 15 (fifteen) days of this Order. Compliance to be reported, to the Tribunal on 24th February, 2006.
(Pronounced in the open Court)