Subhash Singh Kutiyal vs State Of Uttarakhand And Others

Manoj Kumar Tiwari, J

By means of this writ petition, petitioner has sought the following reliefs:

“i) Issue a writ order or direction in the nature of certiorari to quash the order dated 22-9-2019 passed by the commissioner Excise, Dehradun for

the direction to deposit 25% of total amount of recovery (annexed as Annexure no. 9).

ii) Issue a writ order or direction in the nature of mandamus directing the respondents to grant waiver to the petitioner in the light of section 11 (2) (iii)

of U.P. Excise Act, 1910 and to hear and decide the revision of the petitioner on its own merit.

iii) Issue a writ order or direction to the concerned respondents not to use any corrosive measure for the recovery of money on the basis of the order

passed by the excise commissioner Dehradun/District Excise Officer Pithoragarh during the pendency of the writ petition.â€​

According to the petitioner, against the order passed by District Excise Officer, Pithoragarh on 2.05.2018, petitioner had filed an Appeal, which was

dismissed. Against dismissal of Appeal by the Excise Commissioner, petitioner has filed a Revision, which is pending before the State Government.

According to learned counsel for the petitioner, petitioner had moved an application under 3rd proviso to Section 11 (2) of U.P. Excise Act for

waiver of the condition regarding pre-deposit of the amount; but, no decision has been taken on such application.

3rd proviso to Section 11 (2) of Excise Act is reproduced below:

“Provided also that the State Government may, for reasons to be recorded in writing wave, or relax the requirement of preceding proviso in respect

of such disputed amount of tax, fees, penalty or other dues.â€​

Learned counsel for the petitioner further submits that petitioner’s stay application is also pending consideration before the Revisional Authority,

however, Tehsildar, Pithoragarh has now issued a recovery citation for recovery of Rs. 33,39,346/- against the petitioner.

Learned counsel for the petitioner has referred to one order passed by Co-ordinate Bench of this Court on 05.03.2021 in WPMS No. 1923 of 2020,

whereby a direction was issued to the State Government to consider petitioner’s application for waiver from condition of pre-deposit within one

month from the date of production of certified copy of the order. He further submits that petitioner’s application has not been decided by the State

Government so far.

Learned Deputy Advocate General assures the Court that petitioner’s application seeking waiver under 3rd proviso to Section 11 (2) of Excise

Act would be considered within four weeks, if not already considered.

In view of the assurance given by learned Deputy Advocate General, the writ petition is disposed of with a direction to Revisional Authority to

consider and decide petitioner’s application seeking waiver under 3rd proviso to Section 11 (2) of Excise Act as early as possible; but not later

than four weeks from the date of production of certified copy of this order.

For a period of four weeks or till decision on petitioner’s application seeking waiver is taken, no recovery shall be made from the petitioner.

Let a certified copy of this order be issued within 24 hours.