2009 (3) TMI 71 - HC - Central Excise

Revenue initiated recovery proceedings after duty, penalties, fine and interest were confirmed by Commissioner (A) - Petitioner relying on Circular No. 788/21/2004-CX, submit that till the appeal and stay application are filed before the Tribunal, respondent authority must be directed to stay its hands from recovering the outstanding dues held that petitioner s reliance on Circular No. 788/21/2004-CX is not correct - petition is accordingly rejected

Summary

Issues:
1. Petition for writ of mandamus against recovery action by Central Excise Authorities.
2. Entitlement to prefer an appeal before the Tribunal within 90 days.
3. Threat of attachment of factory, plant, machinery, and assets by respondent authority.
4. Interpretation of Circular No. 788/21/2004-CX regarding stay of recovery.

Analysis:
1. The petitioners sought a writ of mandamus to prevent the respondent from taking alleged illegal actions against them, citing violation of constitutional provisions. An order was issued demanding duty payment under the Central Excise Act, penalties, and interest. The petitioners appealed to the Commissioner (Appeals) but failed, leading to recovery proceedings by the respondent. The petitioners argued for a stay on recovery until filing an appeal before the Tribunal, claiming statutory entitlement. However, the court rejected the petition, emphasizing that the Circular cited by the petitioners pertained to first-stage appeals and did not apply to their situation.

2. The petitioners contended their statutory right to appeal to the Tribunal within 90 days of receiving the appellate order, accompanied by a stay application. They argued that until filing the appeal and stay application, the respondent should refrain from recovery actions. The threat of attaching assets, potentially leading to the unit's closure, was highlighted. The court, however, found no merit in these contentions, stating that interfering in recovery proceedings without assessing the underlying dispute would prematurely determine the controversy's merits.

3. Concerns were raised regarding the respondent's initiation of recovery proceedings, including threats to attach the petitioners' factory, plant, machinery, and other assets. The petitioners feared the consequences of such actions on their business operations. Despite their plea for intervention to prevent the attachment, the court emphasized the need to avoid prematurely interfering in recovery processes without a thorough examination of the dispute's merits.

4. The interpretation of Circular No. 788/21/2004-CX was crucial in determining the applicability of stay provisions to the petitioners' case. The court clarified that the Circular referred to stays in first-stage appeals with direct recourse to the Tribunal. The petitioners' reliance on this Circular was deemed misplaced, as it did not align with their specific circumstances. The court's rejection of the petition was based on the understanding that intervening in recovery proceedings without a comprehensive review would be inappropriate.