Mahendra Metal Industries vs Union of India (UOI)

A.L. Dave, J.—Rule : Mr. R.M. Chhaya, learned Standing Counsel waives service for the respondents. The petitioner is engaged in manufacture of Copper & Brass Strips and Rod and is liable to be subjected to Central Excise. The petitioner came to be served with a show-cause notice dated 3-4-2000 to explain the excess stock of goods found in its premises, which was accounted for. One invoice was also found and it was alleged that it was cleared upon less payment of duty by showing lesser quantity of the goods and as such, demand of Rs. 12,03,288/- was levelled against the petitioner by the respondent authorities. Ultimately, the adjudicating authority passed an order on 22-10-2001 confirming the entire demand of duty and penalties.

An appeal was preferred against the said Order-in-Original and the Commissioner (Appeals) set aside that order and remanded the matter back. Thereafter, the Order-In-Original No. 2 "Addl. Commissioner" 2007, dated 12-1-2007 came to be passed on 12-1-2007. The said order came to be challenged by the revenue authorities and Order-in-Appeal No. 297/2007 (Ahmedabad-1) came to be passed on 30-8-2007.

That order came to be challenged by the petitioner before CESTAT which is pending to be admitted as it is time barred. The petitioner has filed an application for condonation of delay, so also application for stay and the notices have been issued by the CESTAT.

In the meantime, recovery notices have been issued on 10-2-2009, 4-8-2009 and 16-9-2009, against which the present petition is preferred by the petitioner making following prayers:

Your Lordships be pleased issue a writ of mandamus and/or a writ of certiorari and/or any other appropriate order or direction directing the respondent department not to initiate any coercive recovery much less take any action pending the hearing and final disposal of the stay application.

Pending further hearing and final disposal of the petition, Your Lordships be pleased to stay the recovery initiated by the respondent Nos. 2 &3.

Ex-parte ad interim relief in terms of prayer (B) above may kindly be granted pending the admission and further hearing of this petition.

We have heard learned advocate Mr. Dave as well as Mr. Chhaya for the parties. Our attention is drawn to the fact that after the appeal was preferred before CESTAT, the Bench was not available, except on one occasion i.e. on 7-8-2009, on which date the petitioner asked for time. Thereafter, the Bench of the Tribunal is still not available and the matter is adjourned to 26-10-2009. The prayer, therefore, is to protect the petitioner against the recovery pursuant to the notices.

We understand that the appeal is preferred belatedly and question of condonation of delay is yet to be decided by the Tribunal. Under the circumstances, since the Tribunal is not available, in bur view, the ends of justice would be meet if the petitioner is granted some protection against recovery upon his depositing an additional amount of Rs. 2 Lacs towards the demand within period of five weeks from today, till the delay condonation application is decided by the Tribunal and/or further orders are passed by the Tribunal. We are given to understand that the applicant has already deposited an amount of Rs. 1,56,755/-.

This petition is, therefore, disposed of with a direction that the recovery in respect of the notices herein referred to above against the petitioner shall not be effected till the delay condonation application is decided by the Tribunal and/or further order are passed by the Tribunal in respect of stay application, subject to the petitioner depositing an additional amount of Rs. 2 Lacs towards the demand within a period of five weeks from today. Rule accordingly. No costs.