M/s. Balkrishna Industries Ltd. vs UOI and Others

These three writ petitions involving similar and akin issues have been heard finally at this stage itself with the consent and at the request of the learned counsel for the parties; and are taken up for disposal by this common order. In these petitions, the similar nature grievance of the petitioners is that they have preferred respective appeals against the respective orders-in-original passed by the respective Assessing Authorities; and the appeals as also the stay applications remain pending before the Appellate Authority for one reason or the other but then, the respondents are seeking to effect coercive recovery pursuant to the questioned Circular No. 967/01/2013-CX dated 01.01.2013.

In CWP No. 11550/2013, the writ petitioner-assessee is said to have filed appeal/appeals against the orders-in-original dated 07.02.2013 on 12.04.2013 alongwith stay application/s. according to the petitioner, pursuant to the said appeal, personal hearing is awaited.

In CWP No. 11577/2013, the petitioner is said to have preferred the appeal against the order-in-original dated 01.03.2011 on 02.05.2011 with the application for stay and waiver of pre-deposit. According to the petitioner, personal hearing was awarded and held on 10.01.2012 when directions were given to the Range Superintendent, Bhiwadi to send his report after verification of the documents and, thereafter, there is no communication or update on the part of the respondents. According to the petitioner, the appeal and the stay application remain pending adjudication.

In CWP No. 11578/2013, the petitioner is said to have preferred appeal on 17.05.2013 against the order-in-original dated 16.03.2013 with application for stay of demand and waiver of pre-deposit. According to the petitioner, hearing in the appeal and the stay application is awaited.

The similar nature grievance projected in these writ petitions is that despite pendency of appeal and the prayer for interim relief before the Appellate Authority, the respondents have proceeded with coercive proceedings and have issued impugned recovery notices, particularly with reference to the questioned circular dated 01.01.2013.

As regards the said questioned Circular No. 967/01/2013-CX dated 01.01.2013, it is an admitted position that so far this Court is concerned, a final view has been taken in the order dated 01.03.2013 passed in the case of Manglam Cement Limited Vs. The Superintendent, Central Excise and Others, wherein this Court has found the impugned Circular, obligating the concerned authorities to initiate recovery proceedings on the expiry of period as mentioned therein, non est in so far it relates to the situation where the appeals with stay applications had been filed but no stay could be granted and the stay applications remained pending for the reasons not attributable to the assessees in any manner. This Court has ultimately observed, held and directed as under:-

In the wake of the above, we hold that the impugned circular dated 1.1.2013 obligating the concerned authorities to initiate recovery proceedings on the expiry of period as mentioned therein so far as it relates to the situations where appeals with stay applications have been filed, but no stay had been granted and the stay applications had been kept pending for reasons not attributable in any manner whatsoever to the petitioners/assessees and resultantly, no interim relief had been granted, is non est. Consequently, no coercive steps for the recovery of the demands vis-a-vis such petitioners would be initiated. Instead, the respondents would ensure that such appeals and interim applications are heard as contemplated by the Act at the earliest and preferably within a period of three weeks here from. The petitioners would unfailingly cooperate with the forums to meet the time frame fixed. It is made clear that this Court has not offered its comment on the merits of the appeals and/or interim applications filed and that the concerned forums would take appropriate decisions thereon without in any manner influenced by this determination.

The petitions are thus allowed to the extent as indicated hereinabove. No costs. A copy of this order be placed in all the files.

Following the aforesaid order dated 01.03.2013, a Co-ordinate Bench of this Court passed the following order on 15.04.2013 in DBCWP No. 3776/2013:-

Heard Mr. Rajvendra Saraswat, learned counsel for the petitioner.

In challenge is the Circular No. 967/01/2013-CX dated 1.1.2013.

A coordinate bench of this Court vide judgment dated 1.3.2013 in a batch of writ petitions, the lead case being D.B. Civil Writ Petition No. 1891/2013 (Manglam Cement Ltd. vs. The Superintendent, Central Excise Range-III, Kota & Ors.), has interfered with the circular to the extent as indicated therein.

Having regard to the identicalness of the challenge made in the instant writ petition, we deem it expedient to close this matter by giving liberty to the petitioner to lay before the authority concerned a copy of the judgment and order dated 1.3.2013 for the needful.

The stay application also stands disposed of.

It has also been pointed out that another Division Bench of this Court has passed the order on 29.05.2013 in a batch of similar nature writ petitions led by CWP No. 8872/2013: M/s. Kamdhenu Ispat Ltd. Vs. Union of India & Ors., wherein, while issuing directions to the Appellate Authorities for fixing up the dates of hearing of the stay applications, the Department has been restrained from making recovery until final disposal of the stay application by the concerned Appellate Authority in the following:-

After considering submissions of learned counsel for the parties, we dispose of these writ petitions as well as stay applications as under:-

(i) The Appellate Authority i.e. Commissioner in the case of Writ Petition No. 8874/2013 and CESTAT in other remaining four cases, are directed to fix a date for deciding the stay application filed by petitioners along with appeals at the earliest.

(ii) The parties are directed to appear before the concerned Appellate Authority/CESTAT on 7.6.2013 and on that date a date will be fixed for hearing of the stay applications by the concerned Appellate Authority/CESTAT.

(iii) The stay applications will be heard and disposed of within a period of six weeks thereafter.

(iv) The respondent Department will not make recovery of the amount in question till final disposal of the stay applications by the concerned Appellate Authority/CESTAT.

The position aforesaid directly applies to the present cases too.

Having regard to the circumstances, these petitions are also allowed in the manner that:-

(i) In each case of the petitioners herein, the concerned Appellate Authority shall fix a date for hearing on the stay application/s immediately, if not already fixed and shall inform the concerned petitioner accordingly;

(ii) The parties shall appear before the concerned Appellate Authority on the date so fixed for hearing on the stay application;

(iii) The stay application shall be heard and disposed of at the earliest by the Appellate Authority, preferably within a period of six weeks from the date of hearing;

(iv) The respondent-Department shall not adopt coercive recovery proceedings in relation to the amount in question until final disposal of the stay application/s by the concerned Appellate Authority.

No costs. A copy of this order be placed on the record of each of the writ petitions.