9911796707
TMI Blog2002 (1) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... as stated in the petition, are that the petitioner is engaged in the manufacture and sale of sugar and molasses at its factory situated in village and post Titawi, District Muzaffarnagar. It, during the period October, 1995 to June, 1997, received number of consignments as inputs and the entry was accordingly made in R.G. 23A, Part I Register but did not make its corresponding entry for availing Modvat Credit in R.G. 23A, Part II on the advice of the Excise Officer. The petitioner was given a show cause notice, dated 21st April, 1998. It submitted a detailed reply before the Deputy Commissioner, Central Excise Division, Muzaffarnagar, who vide order dated 11th June, 1999 disallowed the Modvat Credit of Rs. 4,32,503 and imposed a penalty of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdship to such person, the Commissioner (Appeals) or, as the case may be, the Appellate Tribunal, may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue." 5.The contention of learned Senior Counsel for the petitioner, is that the recovery proceedings against the appellant should remain stayed till the application for dispensing with the condition of pre-deposit and stay application are disposed of by the Commissioner (Appeals) in view of the Circular dated 2nd June, 1998 issued by the Board. 6.The Ministry of Finance (Department of Revenue) Central Board of Excise and Customs, New Delhi issued Circular No. 396/29/98-CX, dated 2nd June, 1998 giving certain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs should be initiated immediately. The Commissioner (Appeals) were also directed to dispose of stay application within the period of two months in case the Commissioner (Appeals) was not in a position to dispose of the main appeal within the same time frame. Recently, the Mumbai High Court has ordered, that Commissioner (Appeals) may be directed to dispose of stay application within the specified time-limit and during the pendency of stay application no coercive action should be taken to realise the arrears of revenue. Keeping the aforesaid in view, the Board3. has decided that no coercive action should be taken to realise the dues till the disposal of the stay application by the Commissioner (Appeals) and the Commissioner (Appeals) mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application within the time frame and in view of the circular if the recovery proceeding for realisation of dues against the appellant remains pending, would breed malpractice. The legislative intent is clear that the duty and penalty, if imposed, be paid at the time of filing of appeal. The appellant gets the benefit of pendency of appeal even though there is no interim stay order passed on the application filed by the appellant. In Vespa Car Co. Ltd. v. Assistant Collector of Central Excise, 1992 (61) E.L.T. 16 (All.), the Court, relying upon the Circular of the Central Board of Indirect Taxes, dated 2nd March, 1990, observed that it would not be fair and just to proceed with the recovery, while applications for stay of the impugned order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and till then not to pay excise dues." 12.The Apex Court, in Union of India v. Jesus Sales Corporation, 1996 (83) E.L.T. 486 (S.C.), laid down guidelines for disposal of stay applications while considering the similar provision under Imports and Export (Control) Act, 1947. The Supreme Court did not uphold the decision of Delhi High Court wherein it was held that the appellant should necessarily be heard on an application to dispense with the requirement of pre-deposit of the amount under the impugned order. 13.In this context it is fundamental duty of the Commissioner (Appeals) to decide the applications within a reasonable time. What would be the reasonable time is given in the Circular dated 2nd June, 1998 referred to above. In Para ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Board will consider the explanation, if any, submitted by the Commissioner (Appeals) in this respect. 4. If the proceedings for recovery of the dues are taken during the pendency of stay application. The appellant can file application before the Appellate Authority inviting its attention to the pending application for stay and on such application the Authority must pass order within ten days. 16.Coming to the facts of the present case, the petitioner is alleged to have filed the appeal on 14th September, 1999 along with an application under Section 35F for dispensing with the condition of pre-deposit of duty as well as penalty. The said application is pending for the last more than one and a half year and still stands undis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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