High Court Doesn't grant Stay in Department's Appeal against CESTAT Order - Commissioner((A) does
HERE is an interesting case in which a Commissioner (Appeals) indirectly stayed an order of the CESTAT which the High Court refused to stay.
The assessee had won in the Tribunal. The Department went in appeal to the High Court. The High Court admitted the appeal but refused to stay the Tribunal's order. In the meanwhile, the assessee claimed refund of the excess duty paid, which was rejected by the Assistant Commissioner. On appeal, the Commissioner (Appeals) decided not to decide the case as the department's appeal was pending in the High Court.
The assessee approached the High Court. The High Court observed:
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 tantamount to ensuring stay against implementation of the decision of the Tribunal, which the High Court refused to grant.
The action of the Commissioner in keeping the appeal against the order of the adjudicating authority refusing to grant refund would be an indirect attempt to deny the benefit to the petitioner flowing from such judgment of the Tribunal when the High Court refused to grant protection. The Commissioner by way of indirect method cannot bestow the same unto himself.
Doesn't this senior IRS officer know that when High Court has refused to stay the CESTAT order, that order is binding on the learned Commissioner?
Imagine a situation where the CESTAT order was against the assessee and the assessee had gone to the High Court and the High Court had not granted stay. The learned Commissioner would have said "mere pendency of the appeal in the High Court is no valid ground to allow the appeal of the assessee. As of now, the Tribunal's order rules the field."
Should you teach principles of adjudication to a Commissioner? We bring you the High Court order today. Please see Breaking News.
While on this, DDT would like to draw your attention to an important decision of the Hyderabad Bench of the CESTAT.
In a particular case, the Tribunal had ruled in favour of the assessee. The Department appealed to the High Court. The High Court upheld the Tribunal's order. The Department filed an SLP in the Supreme Court. The Supreme Court did not stay the order of the High Court but asked the assessee to submit bank guarantee for half the duty.
When an identical case reached the Hyderabad Bench of the Tribunal, the Tribunal observed,
In this background, the order passed by the Tribunal which was confirmed by the Hon'ble High Court of Gujarat is binding even though the appeal is pending before the Hon'ble Apex Court .
In obedience to judicial discipline, the Tribunal followed the High Court judgement.