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Judgment
Heard the learned Senior Counsel appearing on behalf of the petitioner and learned Standing Counsel appearing for Central Government and requested the matter to be taken up for disposal at the stage of admission.
The Assistant Commissioner of Central Excise , Visakhapatnam I , Division, vide order dated 19.3.2001, having confirmed the duty demand amounting to Rs. 78,33,948/- (Rupees Seventy Eight Lakhs Thirty three thousands Nine hundred and forty eight only), demanded the payment , against which, the petitioner herein filed an appeal along with stay petition before the second respondent - Commissioner of Customs and Central Excise (Appeals) , Hyderabad. The Appellate authority found that the petitioner herein did not make out any strong case for complete waiver of the pre-deposit of the amount demanded as prayed for. On the other hand, the appellate authority found the adjudicating authority has, prima facie, made out a case in favour of the revenue.
However, having regard to the facts and circumstances of the case, the appellate authority directed the petitioner to pre-deposit a sum of Rs. 39,25,000/- only, within one month after the receipt of a copy of the order. The petitioner herein vide its representation, dated 02.11.2001, sought for modification of the stay order and accordingly prayed for providing an opportunity for personal hearing prior to disposal of the modification application. It is unnecessary to notice further details in this regard since the learned Standing Counsel for the Central Government, upon instructions form the respondents, states that the application is yet to be disposed of by the Commissioner of Customs and Central Excise (Appeals) , Visakhapatnam. That application, now, is required to be disposed of by the Commissioner of Customs and Central Excise (Appeals), Visakhapatnam. We are told that the incumbent Commissioner of Customs and Central Excise (Appeals) Visakhapatnam, is on leave.
Notwithstanding the strenuous submissions made by the learned Senior Counsel, Mr. Habeebullah Basha, appearing on behalf of the petitioner, we are not inclined to interfere with the order dated 21.8.2001, where under, the petitioner is required to pre-deposit a sum of Rs. 39,25,000/-. Such discretionary orders are not interfered with by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India. However, the application filed by the petitioner dated 02.11.2001 seeking modification of the stay order dated 21.08.2001 is required to be considered by the Commissioner of Customs and Central excise (Appeals) , Visakhapatnam in accordance with law, uninfluenced by the observations , if any made in this order.
The fourth respondent vide proceedings dated 23.11.2004 attached 1913.777 KL @ NAT of Furnace Oil Tank No 290 and estimated the value at Rs. 2.21 Crores. The petitioner is aggrieved by the same.
Having regard to the facts and circumstances and more particularly , having regard to the fact that the petitioner is a public sector undertaking, we consider it appropriate to direct the fourth respondent herein to forthwith raise the attachment, however, subject to the condition of petitioner depositing Rs. 39,25,000/- (Rupees Thirty nine Lakhs Twenty Five thousands only), within a period of two weeks from today, failing of which , the same shall automatically result in revival of the attachment. The amount shall be deposited with the third respondent herein to the credit of the appeal and the amount deposited shall lie with the third respondent subject to further orders to be passed by the Commissioner of Customs and Central Excise (Appeals) , Visakhapatnam. It is needless to observe that in case, if the order dated 21.08.2001 is modified, the third respondent shall have to return the deposited amount in terms of the order of modification, if any, to be passed by the Commissioner of Customs and Central Excise (Appeals) , Visakhapatnam.
The Commissioner of Customs and Central Excise (Appeals) , Visakhapatnam , is directed to dispose of the application dated 02.11.2001 filed by the petitioner herein seeking modification of the stay order after providing an opportunity of personal hearing to the petitioner, within a period of eight weeks from the dated of receipt of a copy of this order.
The writ petition is accordingly disposed of. There shall be no order as to costs.