2013 (3) TMI 111 - HC - Central Excise

Circular No.967/01/2013-CX dated 01.01.2013 challenged and the consequential notice for recovery - Held that - An appeal has been filed to the Commissioner (Appeals) on 30.06.2012 along with the stay application and no hearing has been granted so far. In the meanwhile, recovery notice has been issued based on the impugned Circular dated 01.01.2013. despite filing of the stay application. Notices be issued to the respondents to show cause as to why this petition be not admitted and finally disposed at this stage. Notices of the stay application be also issued. Notices be made returnable on 06.02.2013 and be given Dasti to the learned counsel for the petitioner, if so desired. In the meanwhile until the next date in this matter or until disposal of the stay application by the Appellate Authority, whichever is earlier, there shall be stay over recovery of the amount involved.

Summary

Issues:
1. Appeal against Order-in-Original not taken up by Appellate Authority
2. Circular requiring recovery proceedings after 30 days of appeal filing
3. Vacancy in Commissioner (Appeals) posts causing delay in consideration of matters

Analysis:
1. The petitioner filed an appeal against the Order-in-Original dated 30.03.2012 before the Appellate Authority, Commissioner (Appeals), Jaipur-II on 30.06.2012. However, the petitioner's counsel contended that the Appellate Authority had not taken up the appeal or the stay application for hearing, leaving the matter pending. This delay was exacerbated by a circular issued by the Central Board of Excise and Customs, mandating recovery proceedings to be initiated if no stay was granted within 30 days of appeal filing.

2. The petitioner argued that the circular's stipulations could prejudice them, as their appeal and stay application remained pending while recovery actions were being contemplated. Reference was made to an order dated 09.01.2013 from the Andhra Pradesh High Court in a similar matter. The petitioner's counsel highlighted the shortage of Commissioner (Appeals) posts in Jaipur, with one position vacant since October 2011, leading to numerous pending cases awaiting consideration.

3. The High Court issued notices to the respondents, directing them to show cause why the petition should not be admitted and disposed of at the current stage. Additionally, notices for the stay application were also issued, with a returnable date set for 06.02.2013. The Court ordered a stay on the recovery of the appealed amount until the next hearing date or the disposal of the stay application by the Appellate Authority, whichever came first. It was clarified that the pendency of the writ petition should not hinder the Appellate Authority from considering the stay application, and the petitioner must attend any scheduled hearing for the same.

4. Furthermore, the petitioner was instructed to comply with any final order passed by the Appellate Authority regarding interim relief in the appeal. The pendency of the writ petition was not to obstruct the Appellate Authority from making appropriate decisions in accordance with the law, and the petitioner was obligated to fulfill any liabilities determined by the final orders issued by the Appellate Authority.