2011 (3) TMI 325 - HC - Central Excise

Stay application - Waiver of pre-deposit - The circular issued by the Central Board of Excise and Customs, dated 10.1.2007 clearly stipulated that in the absence of any stay by CESTAT or the High Court, there is no impediment for the authorities to recover the amount - the writ petition will stand dismissed

Summary

Issues:
Entitlement to interim order pending stay application and application to waive pre-deposit before CESTAT.

Analysis:
The petitioner sought the benefit of an interim order from the court while their stay application and application to waive pre-deposit were pending before CESTAT. The petitioner had filed appeals and stay applications related to duty and penalty orders. The court noted that the Tribunal had not stayed the orders or waived the pre-deposit condition. The petitioner argued for the right of appeal under Section 35-B of the Central Excise Act, 1944, mentioning the provision for depositing the amount pending appeal, subject to the Tribunal's discretion. The Tribunal had not waived the pre-deposit condition in this case.

The respondent contended that the petitioner's actions did not show good faith, as they sought adjournments and delayed proceedings before the Tribunal. The petitioner referred to previous court orders and a Rajasthan High Court judgment regarding the coercive recovery machinery during stay petitions. However, circulars specified the limitations of such provisions, stating recovery could proceed in the absence of a stay by CESTAT or the High Court.

The court emphasized that any recovery was subject to the Tribunal's or court's final decision, and delaying tactics by the petitioner were not acceptable. The court highlighted the limited scope of judicial review and the need to exhaust statutory remedies before seeking court intervention. Citing Supreme Court judgments, the court emphasized the importance of adhering to statutory forums and not bypassing them through writ petitions.

Considering the precedents and legal principles, the court found the writ petition lacking in merit and dismissed it. The court also highlighted the need for caution in exercising jurisdiction under Article 226, emphasizing the importance of statutory remedies and discouraging interference that could impact the rights of financial institutions. The judgment concluded by dismissing the writ petition without costs and closing connected miscellaneous petitions.