2013 (1) TMI 559 - HC - Central Excise

Writ Of Certiorari - Petitioner challenges the Circular No.967/01/2013-CX dated 01.01.2013 and the consequential notice for recovery dated 09.01.2013 - Held that - An appeal has been filed to the third respondent, the Commissioner of Customs (Appeals) on 22.12.2011 along with the stay application and no hearing has been granted so far. In the meanwhile, recovery notice has been issued on 09.01.2013 based on the impugned Circular dated 01.01.2013. despite filing of the stay application, the direction for recovery makes it mandatory for the authority to recover the amount within a period of 30 days after the filing of the appeal even if there is a stay application pending and has not been disposed of. The plea taken is that the proviso to section 129-E of the Customs Act does not specify any time limit. In such view of the matter, it is pleaded that the circular overreaches the provisions. Direction to post the matter on 31.01.2013 & there will be an order of interim stay till then.

Summary

Issues: Challenge to Circular No.967/01/2013-CX and consequential recovery notice based on the circular.

Analysis:
The petitioner challenged Circular No.967/01/2013-CX dated 01.01.2013 and the subsequent recovery notice issued on 09.01.2013 in the writ petitions. An appeal was filed to the Commissioner of Customs (Appeals) on 22.12.2011 along with a stay application, but no hearing had been granted. Despite the pending stay application, a recovery notice was issued on 09.01.2013 based on the impugned Circular. The petitioner argued that the circular mandated recovery within 30 days of filing an appeal, even if a stay application was pending and not disposed of, contrary to the Customs Act's provisions. The petitioner contended that the proviso to section 129-E of the Customs Act did not specify any time limit, making the circular in violation of the law.

The court, after considering the arguments presented, ordered that the matter be posted on 31.01.2013 and granted an interim stay until then. The court directed the case to be heard along with another related petition (WP. No.1562/2013). The petitioner's plea challenging the circular's validity and the recovery notice was based on the contention that the circular's provisions were in conflict with the Customs Act's relevant sections. The court acknowledged the petitioner's concerns regarding the recovery process and the lack of specified time limits in the Customs Act, leading to the interim stay order to prevent immediate recovery actions until further examination of the case.