central excise
manoj gupta
(Querist) 18 November 2009
This query is : Resolved
I wish to seek your valued opinion on the following matter of Central Excise.
CEGAT had passed an order confirming the demand adjudicated by the Collector, CE, Kanpur. Since there were few questions of law involved, I filed REFERENCE Application in High Court and High Court had allowed my Reference Application and called up on the CEGAT to send the Statement of facts to Hon’ble High Court for its opinion/further orders. The CEGAT had already sent the details to Hon’ble High Court and notices have also been issued by the High Court for filing of Vakalatmana & Paper Book which too has been filed by parties. But the case is still pending in the High court and has not been listed for the last 6-7 years. Since, Stay had not been granted in this REFERENCE case, the Department have been pressurizing me for payment of dues/demand. My submission to the Department has been that the Order of the CEGAT is no more a final order once the REFERENCE Application has been allowed and thus the unconditional Stay granted to us while filing the appeal in the CEGAT becomes operative.
Kindly favor me with your valued opinion and also oblige me by providing me some case law etc which may be submitted the Department so that they may not press me for recovery of dues till the decision by Hon’ble HC.
Regards.
Raj Kumar Makkad
(Expert) 18 November 2009
As the matter has been admitted by High court and after admission the due notices have been issued and all this reference application contents are in the knowledge of the department in depth so no question arises to make the payment of the dues. You may again issue a notice to the department and may advise them not to make efforts to recover the dues otherwise the concerned officials of the department shall have to face contemp of court. No formal stay order is required to be issued in such matters. You may alternatively make an application seeking stay in the aforesaid pending matter before HC.
Devajyoti Barman
(Expert) 18 November 2009
Mere preferring any appeal, revision or reference does not automatically make the impugned order stayed unless specifically granted. Please note that if at the time of admission of your said Reference case the High Court did not grant stay of operation of the order assailed therein then the concerned department has no legal impediment to press for recovery of the dues.In that circumstances it would be advisable to get the said Reference case immediately listed before the High Court and move for stay of the impugned order..
