2006 (1) TMI 54 - HC - Central Excise

There is an order of Tribunal, fixing the liability on the petitioner to pay the duty and when there is admittedly no stay against that order is passed, the first respondent (Revenue) is entitled to make a demand for payment of the duty - Such a demand is perfectly legal and the first respondent cannot be restrained from making the demand - The petitioner has not made out a case for issuing the writ

Summary

Issues:
1. Writ of Mandamus to prevent recovery of arrears of Central Excise Duty.
2. Validity of demand raised based on the order of the Customs, Excise and Service Tax Appellate Tribunal.
3. Contention regarding the ex parte nature of the Tribunal's order and the pending application to set it aside.

Analysis:
1. The petitioner filed a writ petition seeking a writ of Mandamus to restrain the first respondent from collecting arrears of Central Excise Duty based on a communication from the Deputy Commissioner of Central Excise. The demand was confirmed by the Customs Excise and Service Tax Appellate Tribunal in Final Order No. 825/05. The petitioner challenged the demand through the writ petition.

2. The Customs, Excise and Service Tax Appellate Tribunal allowed an appeal by the Commissioner of Central Excise against a previous order by the Commissioner of Central Excise (Appeals). Subsequently, the first respondent issued a demand on the petitioner following the Tribunal's decision. The petitioner argued that the Tribunal's order was ex parte, and they were unaware of it until receiving the demand notice. The petitioner contended that since their application to set aside the Tribunal's order was pending, the demand should not have been raised. However, the court held that in the absence of a stay against the Tribunal's order, the first respondent was within their rights to demand payment of the duty. The court deemed the demand legal and dismissed the writ petition as the petitioner failed to establish a case for issuing the writ.

3. The petitioner's claim of being unaware of the Tribunal's order due to it being ex parte was considered by the court. The petitioner's argument that the demand should not have been raised while their application to set aside the order was pending was deemed untenable. The court emphasized that in the presence of an order establishing liability for duty payment and no stay against it, the first respondent had the authority to demand payment. Consequently, the court found no grounds for issuing the writ and dismissed the petition, closing the connected application.

This judgment clarifies the legal standing regarding demands for payment of duties based on Tribunal orders, emphasizing the necessity of compliance in the absence of a stay against such orders.