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Cus - Refusal by Appellate Commissioner to grant refund on ground that department's appeals are pending before HC would tantamount to ensuring stay against CESTAT order & is patently illegal: High Court

By TIOL News Service
AHMEDABAD, FEB 12, 2016: CASE of the petitioners is that the Commissioner (Appeals) - respondent No.2 is not deciding the appeals of the petitioners only on the ground that the Department's appeal against the judgment of the Tribunal is pending before the High Court. It appears undisputed that the Commissioner has decided to keep the appeal of the petitioners in 'Call Book' on account of pendency of the Department's appeals before the High Court.

Undisputed facts are that the petitioner succeeded before the CESTAT when the appeals were allowed by judgment dated 07.11.2012. Against such judgment of the Tribunal, the Department has preferred Tax Appeals in which the High Court, while admitting the appeals, refused to grant stay against the judgment of the Tribunal.

Armed with the judgment of the Tribunal, the petitioners applied for refund of the excess duty collected. Refund applications came to be dismissed by the adjudicating authority, upon which the petitioners have filed several appeals before the Commissioner. These appeals are kept by the Commissioner in 'Call Book' on the ground above.

After hearing both sides, the High Court held:

+ When the High Court has refused to grant stay against the judgment of the Tribunal, the Commissioner cannot indirectly ensure such stay by refusing to process and decide the appeals of the petitioners. This is precisely what the Commissioner has done in the present case. Refusal to decide the appeals on the ground that the Department's appeals are pending before the High Court would tentamount to ensuring stay against implementation of the decision of the Tribunal, which the High Court refused to grant. Commissioner (Appeals) is directed to decide the appeals in question of the petitioners expeditiously and dispose of the same preferably by 29.02.2016.

(See 2016-TIOL-255-HC-AHM-CUS)

 

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