1998 (1) TMI 89 - HC - Central Excise

Summary

Issues:
1. Whether the petitioner can be compelled to pay the disputed excise duty before the appeal and stay application are decided.
2. The obligation of the appellate authority to make a decision on the waiver and stay applications.
3. The consequences of inaction by the appellate authority in deciding on the application under Section 35F of the Central Excise Act, 1944.
4. The timeline within which the Commissioner of Central Excise (Appeals) should decide on the stay and waiver applications.
5. Provision of a stay on coercive measures for recovery until the decision on the waiver and stay applications.

Analysis:

The petitioner challenged an order demanding Central Excise duty before the Commissioner of Central Excise (Appeals) while seeking a stay and waiver under Section 35F of the Central Excise Act, 1944. The Assistant Commissioner of Central Excise issued a notice for non-deposit of the disputed amount, threatening coercive recovery measures. The petitioner contended that coercive measures cannot be taken until the appeal and stay application are decided, citing a previous court decision. The court referred to a similar case where inaction by the appellate authority was deemed a refusal to exercise discretion, emphasizing the need for timely decision-making to avoid frustrating the purpose of the appellate authority's powers.

The court, after considering the petitioner's arguments, disposed of the writ petition with directions to the Commissioner of Central Excise (Appeals) to decide on the stay and waiver applications promptly. The court mandated a decision within three weeks if the appeal could not be resolved expeditiously. The petitioner was required to submit a certified copy of the order within ten days. Additionally, the court restrained the respondents from taking coercive measures for recovery for a period of six weeks or until the stay and waiver applications were decided, whichever came earlier.

In conclusion, the court issued a certified copy of the order to the petitioner's counsel for payment within three days, thereby finalizing the writ petition subject to the specified directions and stay on coercive measures for recovery pending the decision on the waiver and stay applications.