Allowed

M/s. Sarvotham Care Limited, v. The Asst Commissioner of Customs and Central Excise

Telangana HC19 Feb 2013WP/4807/2013

Case brief

AI extract

What is this about?

This writ petition challenged the detention of goods under Section 11 of the Central Excise Act. The Supreme Court quashed the detention order, restraining recovery of dues pending the Tribunal's consideration of a stay application due to a long-standing vacancy of a technical member.

What did the court decide?

Detention order dated 5-2-2013 quashed; respondents restrained from recovering disputed duty, interest, and penalty pending stay application disposal.

M/s. Sarvotham Care Limited, Vs The Asst Commissioner of… — Cheque Dishonour | Telangana HC (2013)

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HONOURABLE SRI JUSTICE GODA RAGHURAM

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AND

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HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO

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W.P.Nos.4807 of 2013

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Oral Order :

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(Per Hon’ble Sri Justice M.S.Ramachandra Rao)

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Heard Sri G. Mohan Rao, learned counsel for the petitioner and Sri V. Gopala Krishna Gokhale, learned counsel for the respondents.

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The petitioner was assessed to excise duty along with interest and penalty under the provisions of the Central Excise Act, 1944 by the 1^st respondent vide Order-in-Original No.016/2009 dated 28.5.2009.

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Aggrieved thereby, the petitioner filed Appeal No.48 of 2009 before the Commissioner (Appeals), who dismissed the same by Order-in-Appeal No.51/2009 dt 23.11.2009.

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Challenging the same, the petitioner filed Appeal No.E/1263/2010 along with a stay application No.E/Stay/721/2010 for waiver of duty, interest and penalty before the 3^rd respondent.

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According to the petitioner, the stay application was listed on 31.7.2012 but was not taken up on that day and the next date of hearing of the stay application was not intimated to it due to retirement of a technical member of the 3^rd respondent-Tribunal.

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In the meantime, the 2^nd respondent issued a letter OC No.63/2013 dated 10.1.2013 directing the petitioner to pay duty confirmed vide orders dated 25.8.2009 along with interest and

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penalty within one week and in default threatening to initiate coercive process under Section 11 of the Central Excise Act, 1944 for recovery of the same.

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The petitioner submitted a representation on 16.1.2013 to the 2^nd respondent requesting to grant two more months time for disposal of the same.

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But the 2^nd respondent vide endorsement dated 21.1.2013 refused to grant time and asked the petitioner to pay dues immediately.

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As the petitioner did not pay the dues, on 5.2.2013, the 1^st respondent passed orders under Section 11 of the Central Excise Act, 1944 detaining the property and goods of the petitioner crippling the manufacturing activity of the petitioner. This action was initiated on the basis of a Circular dt.01-01-2013 which has been issued by the Central Board of Customs and Excise, Government of India, Ministry of Finance, Department of Revenue, New Delhi directing recovery of the disputed duty, interest and penalty if no stay orders are granted within 30 days of filing of the appeal before the Tribunal

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Therefore the present writ petition has been filed challenging the action of the respondents in detaining goods and property of the petitioner pending consideration of the stay application No.E/Stay/721/2010 in Appeal No.E/1263/2010 by the 3^rd respondent.

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The petitioner contends that it has filed appeal before the 3^rd respondent-Tribunal challenging the Order-in-Appeal passed against it; that it has a prima facie case and balance of

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convenience in its favour; that pending consideration of its stay application by the 3^rd respondent-Tribunal, if coercive measures are taken by respondents 1 and 2 to recover the disputed duty, interest and penalty, it would render its appeal infructous; and therefore appropriate directions be granted restraining the respondents from recovering the dues of disputed duty, interest and penalty pending consideration of the stay application in the appeal filed by it.

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The learned counsel for the respondents have not disputed that there was, for a considerable time, a vacancy in the office of technical member in the Tribunal, but pointed out that recently the said vacancy has been filled up.

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In view of the fact that there was a vacancy for considerable time in the Tribunal on account of absence of a technical member; and it was not functioning till very recently for that reason; although a new member is appointed to fill the said vacancy, it would still take time for it to deal with all the pending stay applications in the appeals which have been filed before it since the said vacancy arose, we are of the view that interests of justice would be met if the respondents are restrained from making recovery of the disputed duty, interest and penalty from the petitioner, pending consideration of its stay application No.E/Stay/721/2010 in the appeal No.E/1263/2010 preferred by it before the 3^rd respondentTribunal which is pending. The detention order dt.5-2-2013 of the 1^st respondent is quashed.

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The writ petition is disposed of with the above directions. No costs.

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____________________________ JUSTICE GODA RAGHURAM

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___________________________________ JUSTICE M.S.RAMACHANDRA RAO

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February 19^th , 2013. kk

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HONOURABLE SRI JUSTICE GODA RAGHURAM

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AND

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HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO

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W.P.Nos.4807 of 2013

M/s. Sarvotham Care Limited, v. The Asst Commissioner of Customs and Central Excise

Case brief

What is this about?

What did the court decide?

M/s. Sarvotham Care Limited, v. The Asst Commissioner of Customs and Central Excise

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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