HPCL Vs. COMMR. OF C. EX., MYSORE

JUDGEMENT

(1.) THE appellant is a PSU. They have applied to the Committee of Secretaries to obtain clearance to proceed with the matter. The appeal has been filed in time. The total duty amount is more than Rs 3.33 crores. The matter is under consideration before the Committee of Secretaries. In the meanwhile the revenue has proceeded to recover the amounts. This has necessitated the appellants to file this miscellaneous application which has come up for consideration today. A copy has been served on the SDR as well as on the Commissioner of Service Tax Mysore. Learned Joint Commissioner Shri A. Jayachandran is present before the Court to explain the situation necessitating the revenue to proceed to recover the amounts. It is his submission that the appellant was required to have informed the Commissioner about their pursuing before the Committee of Secretaries to get the clearance to pursue the appeal. The Department waited for four months in terms of Board Circular. As they did not receive any intimation from the appellant PSU, therefore, in the normal course of administration they have proceeded to recover the amounts.

(2.) LEARNED Counsel produced a copy of the reference made to the Cabinet Secretary filed by the appellants to seek permission, along with 15 copies. Learned DR Shri K. Sambi Reddy produces a copy of Final Order No. 840/07 dated 27 -7 -07 wherein similar appeals of the appellant have been dismissed for not obtaining clearance certificate from the Committee of Secretaries, however granting liberty to seek restoration as and when they get the clearance. On a query from the Bench, the Joint Commissioner present in the Court as well as the DR submits that when the appeal itself is not admissible then the question of passing an interim order does not arise. However the Joint Commissioner left the matter to the Bench to give any interim direction as the Bench deems necessary.

(3.) WE have carefully considered the submissions. We notice that in terms of the Board Circular, the appellants have already filed an application before the Cabinet Secretary to seek permission to pursue the appeal in terms of the Board Circular. The revenue is not required to recover the amounts till such time as the matter is taken up by the Committee of Secretaries. In this case as the appellants have already proceeded to seek permission, the Commissioners proceeding to recover the amount is not justified. We are of the view that the Commissioner should not recover the amount till such time the matter is decided by the Committee on Disputes. However the revenues prayer for dismissal of the appeal and granting the appellants liberty to seek restoration after getting the clearance certificate is also in terms of the procedure now being followed by the Bench. The appeal is dismissed for want of clearance, however, granting liberty to the appellants to file an application for restoration of appeal as and when they get the clearance from the Committee of Secretaries.