Asian Barrels Private Limited vs Commissioner of Customs and Central Excise (Appeals)

Syed Shah Mohammed Quadri, J.—The petitioner has suffered an order of adjudication at the hands of the Assistant Commissioner of Central Excise, Division II, Hyderabad - 2nd respondent on 4-1-1996. Against that Order, it filed an appeal before the Commissioner of Customs and Central Excise (Appeals) u/s 35 of the Central Excises and Salt Act, 1944. Along with that appeal an application praying the appellate authority to dispense with the deposit of the duty found payable by the petitioner, was filed u/s 35-F of the Act. The stay application and the appeal were filed in the prescribed form on 12-2-1996. The grievance of the petitioner is that for the last four months, the application is kept pending by the 1st respondent whereas the 2nd respondent has issued orders of detention on 4-5-1996. As a result of non-exercise of the jurisdiction by the first respondent, the petitioner is put to great hardship and irreparable loss. In these circumstances, the petitioner prays for a writ of mandamus directing the respondents not to take further proceedings pursuant to the order of adjudication of second respondent in No. 120/95, dated 4-1-1996 and for a further direction not to enforce the detention order D.O.R. No. 38/93, dated 4-6-1996 of the 2nd respondent.

Shri Jagannadha Sarma, learned Counsel for the petitioner, submits that when the petitioner filed an appeal and a stay petition under the proviso to Section 35-F of the Act, the 1st respondent ought to have exercised his discretion and passed appropriate orders. He further submits that the non-exercise of the jurisdiction by the first respondent for more than four months has caused prejudice to the petitioner because the 2nd respondent, in the meanwhile, has proceeded to pass the order of detention.

Shri Innayya Reddy, the learned Standing Counsel for the respondents, however, submits that in similar circumstances in W.P. No. 10558/96, dated 1-6-1996 this Court has declined to grant stay, therefore, this Writ petition may also be dismissed.

We find considerable force in the submission of the learned Counsel for the petitioner Shri Jagannadha Sarma. The application under the proviso to Section 35-F of the Act was filed as long back on 12-2-1996. The inaction on the part of the 1st respondent in not disposing of the same for more than four months, would support the contention that the 1st respondent is not exercising his jurisdiction under the proviso to Section 35-F. The cardinal principle is no mistake or inaction on the part of a statutory authority should be allowed to prejudice the rights of the citizens. In this case, it is evident that for more than four months, the petition filed under the proviso to Section 35-F remains undisposed of. In the absence of any order by the 1st respondent, the 2nd respondent has passed the order of detention on 4-6-1996, with the result, due to non-exercise of the jurisdiction by the 1st respondent, the petitioner is made to suffer the order of detention. If further proceedings are allowed to be taken pursuant to the memo of detention issued by the 2nd respondent dated 4-6-1996, it will cause great hardship and irreparable loss to the petitioner. This view of ours is supported by the decision of a Division Bench of the Allahabad High Court in Alloy Steel Forgings (P) Ltd. Vs. Asstt. Collector, C. Ex., .

In the case relied upon by the learned Standing Counsel, the appellate authority viz., CEGAT had already fixed the hearing of the stay petition on filing of the appeal. Therefore, in that case, this Court came to the conclusion that it was not a case of non-exercise of jurisdiction whereas the case on hand is a clear case of non-exercise of jurisdiction. Therefore, the case relied upon by the learned Standing Counsel for the respondents, cannot be an authority to decline relief to the petitioner.

For the above reasons, we direct the 1st respondent to dispose of the stay petition within one month from the date of receipt of a copy of this order and further direct the 2nd respondent not to take any further steps pursuant to the Detention Order No. 38/93 dated 4-6-1996 pending passing of the orders by the 1st respondent. Any further action pursuant to the said detention order shall abide the orders of the 1st respondent. Writ Petition is accordingly disposed of. No costs.