2013 (2) TMI 363 - HC - Central Excise

Notice for recovery - Challenge the Circular No. 967/01/2013-CX dated 1.1.2013 - Held that - An appeal has been filed before the CESTAT along with the stay application, but no hearing has been granted so far & in the meanwhile, recovery notice has been issued. Let notices be issued to the respondents to show cause as to why this petition be not admitted and finally disposed at this stage. Notices of the stay application be also issued. Notices be made returnable on 06.02.2013 and be given Dasti to the learned counsel for the petitioner, if so desired. Pendency of this writ petition or passing of this order shall not be of any impediment in the Appellate Authority considering the stay application/s moved by the petitioner; and for that matter, the petitioner shall be under an obligation to attend the date of hearing, if at all fixed by the Appellate Authority for consideration of the stay application & shall be under an obligation to abide by the order finally passed by the Appellate Authority on the prayer for interim relief in the appeal.

Summary

Issues:
1. Delay in hearing appeals and stay applications by Appellate Authority and Appellate Tribunal.
2. Impact of circular issued by Central Board of Excise and Customs on recovery proceedings.
3. Vacancy in the post of Commissioner (Appeals) leading to pending matters.
4. Need for early consideration of appeals pending before CESTAT.
5. Admissibility of the petition and stay application.

Analysis:

1. The petitioner's counsel highlighted the delay in the Appellate Authority and CESTAT in taking up the appeals and stay applications for hearing. The Central Board of Excise and Customs issued a circular requiring recovery proceedings after 30 days of filing the appeal without stay. This situation could prejudice the petitioner due to pending appeals and coercive recovery methods.

2. Referring to a similar order by the Andhra Pradesh High Court, the counsel pointed out the vacancy of one Commissioner (Appeals) post since October 2011 in Jaipur, leading to numerous pending matters. The petitioner sought relief similar to the one granted in a previous case to address the delay in hearing appeals by the Commissioner (Appeals).

3. The Court acknowledged the delay in hearing appeals and stay applications by the Appellate Authority and decided to issue notices to the respondents to explain why the petition should not be admitted and disposed of. Stay notices were also issued, and a stay on the recovery of the amount involved in the appeals was granted until the next hearing or disposal of the stay application by the Appellate Authority, whichever is earlier.

4. The Court clarified that the pendency of the writ petition should not hinder the Appellate Authority from considering the stay application. The petitioner was directed to comply with the final order passed by the Appellate Authority on the prayer for interim relief, emphasizing that the petitioner must attend the hearing dates fixed by the Authority.

5. It was further clarified that the pendency of the writ petition should not prevent the Appellate Authority from passing appropriate orders in accordance with the law. The petitioner was reminded of their obligation to abide by the final order passed by the Appellate Authority and not avoid their liability, irrespective of the writ petition's status.