1990 (4) TMI 69 - HC - Central Excise

Summary

Issues:
- Relief sought in a writ petition regarding recovery of disputed demand pending appeal
- Application under proviso to Section 35F of the Central Excises and Salt Act, 1944
- Inaction of the appellate authority in passing an order on the application
- Threat of recovery of disputed dues by the respondents
- Mandamus sought to direct the disposal of the application by the appellate authority
- Stay on recovery of disputed amount until the application is decided

Analysis:

The petitioner sought relief in a writ petition to prevent the respondents from pressing for the recovery of a disputed demand pending an appeal before the Collector of Central Excise (Appeals), New Delhi until the petitioner's application under the proviso to Section 35F of the Central Excises and Salt Act, 1944 is decided. The proviso allows the appellate authority to dispense with the deposit of duty demanded or penalty levied if it would cause undue hardship. The petitioner's application under this proviso was pending, and the respondents threatened to recover the disputed dues through coercive measures.

The judgment highlighted that the inaction of the appellate authority in passing an order on the application under the proviso while allowing the recovery of disputed dues would defeat the purpose of the proviso. Referring to a Supreme Court case, it emphasized that when circumstances exist for the exercise of authority, the authority must act appropriately. In this case, as the respondents were taking coercive measures without a decision on the petitioner's application, the Court deemed it just to issue a mandamus directing the Collector of Central Excise (Appeals) to decide on the petitioner's application within two weeks.

The Court ordered a stay on the recovery of the disputed amount until the application is decided. The petitioner undertook to file a copy of the order promptly and not seek adjournment. The judgment concluded by disposing of the writ petition subject to the directions given, ensuring that a certified copy of the order is provided to the petitioner's counsel promptly.