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TMI Blog2014 (9) TMI 221X X X X Extracts X X X X X X X X Extracts X X X X ..... onal Committee v. CCE, Guntur (2011-TIOL-800-HC-AP-ST) was communicated, if passed the impugned order in OC. No. 21/2011-12, dated 27-1-2012, directing the petitioner to pay the arrears of Rs. 3.92 crores arising out of the subject Order-in-Appeal No. 30/2010, dated 23-4-2010 of the Commissioner (Appeals), inasmuch as the arrears is not stayed. Questioning the impugned order, the petitioner has filed the writ petition seeking to quash the same. 2. According to the petitioner, it had manufactured isolators in their factory at Porur during the period from 1-10-1993 to 28-2-1997, classified them under Chapter 85.35 of the Central Excise Tariff Act, 1985 and cleared them at the rate of 10% ad valorem. However, the Deputy Commissioner of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t any requirement of pre-deposit. Accordingly, the Commissioner (Appeals), by an order dated 23-4-2010 vide Order-in-Appeal No. 30, rejected the appeal. Aggrieved further, the petitioner preferred a second appeal before the second respondent-CESTAT along with an application for waiver of pre-deposit-cum-stay on 12-7-2010. As there was no regular sitting of the Bench, the appeal along with waiver-cum-stay application is still pending before the second respondent. Pending appeal, the first respondent has passed the impugned order, directing the petitioner to pay the arrears of Rs. 3.92 crores on the ground that there is no stay of recovery proceedings. Aggrieved by the same, the petitioner has preferred the present writ petition. 3. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6-2011, who, in turn, directed the Department Representative to issue appropriate directions to the concerned authorities not to resort to any recovery steps during the pendency of waiver and stay petition and the same was intimated to the first-respondent. The judgment of the High Court of Andhra Pradesh in Chaitanya Educational Committee v. Commissioner of Customs & Central Excise was referred to in the counter, wherein it is held that the pendency of an appeal before CESTAT or before High Court does not in any manner whittle down the powers under Section 87(c) of the Finance Act, 1994 and the High Court has pronounced that the powers of Central Excise Officers to detain any movable and immovable properties until the amount payable is pai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed order based on the instructions issued by the Chief Commissioner (TAR) at C.B.E. & C., New Delhi communicated through the Chief Commissioner, Chennai. He has also relied on the decision of the Andhra Pradesh High Court in Chaitanya's case (cited supra) in support of his contention that in the absence of any stay of the order-in-appeal, the Central Excise Officers can proceed with the recovery proceedings. Therefore, the writ petition is devoid of merits and the same is liable to be dismissed. 6. Admittedly, the dispute is with regard to the classification of isolators. While the petitioner classified them under Chapter 85.35, chargeable with duty at 5% or 10%, the Deputy Commissioner of Central Excise, Chennai-II Division claimed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it of Rs. 1,50,00,000/- imposed by the Commissioner (Appeals), it cannot find fault with the first respondent's action in passing the impugned order. It is settled law that when there is no stay of the proceedings, it is always open to the authorities to initiate appropriate recovery proceedings. However, the first respondent, in the light of the directions issued by this Court in Writ Petition No. 34350 of 2003, ought to have considered the case of the petitioner. 8. During the course of arguments, it is reported that there is now regular sitting of the Bench and if the second respondent is directed to dispose of the waiver-cum-stay petition filed by the petitioner within a stipulated period, the entire grievance of the petitioner wo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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