Disposed

M/s.Victory Containers, v. The Additional Commissioner of

Telangana HC25 Feb 2013WP/5563/2013

Case brief

AI extract

What is this about?

In a writ petition, the High Court held that while an interim application for waiver of pre-deposit or stay of duty is pending before the Appellate Authority, no coercive steps shall be taken by the assessing authority to recover the disputed duty, interest, and penalty. The petition was disposed of on this ground.

What did the court decide?

Directions to respondents 1 and 3 not to coerce the petitioner to pay disputed duty, interest, and penalty while the stay application remains pending.

M/s.Victory Containers, Vs The Additional… — GST and Indirect Tax | 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.No.5563 of 2013

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ORDER:

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

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Heard Sri V.Bhaskar Reddy, learned counsel appearing for the petitioner and Sri A.Rajasekhar Reddy, learned Senior Counsel for the respondents at the stage of admission.

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The petitioner is a manufacturer of Tin metal containers. During 2007-08 to 2011-12, it had undertaken manufacturing of Tin metal containers on job work basis out of raw material provided by its customers who are edible oil manufacturers. During this period, the petitioner claims that it had not manufactured anything on its own and that its entire turnover is with reference to the job work undertaken by it.

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An Order in Original No.45/2012 (PRB) dated 28.09.2012 in File C.No.V/15/13(CE/2012-ADJ was passed by the 1^st respondent against the petitioner holding the petitioner liable to pay an amount of Rs.21,46,508/- towards differential Central Excise Duty in respect of the goods manufactured on job work basis invoking proviso to S.11A(1) of the Central Excise Act, 1944 (for short ‘the Act’) (as it stood then) for the period

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prior to 08.04.2011 and u/s.11A(4) of the Act for the period after 08.04.2011 along with interest and penalty under the Act.

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Aggrieved thereby, the petitioner filed an appeal on 27.12.2012 before the 2^nd respondent. The said appeal was given reference Appeal No.38/2012(V-II) CE and a letter dt.28.12.2012 acknowledging the filing of the same was sent to the petitioner by the office of the 2^nd respondent.

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Along with the said appeal, the petitioner also filed an application seeking stay/waiver of pre-deposit of duty, interest and penalty. According to the petitioner, the said application is pending with the 2^nd respondent and till date no notice was received by it posting the matter for hearing. Although 2^nd proviso to S.35F of the Act requires the 2^nd respondent to decide application for waiver of predeposit/stay within 30 days from the date of its filing, the petitioner contends that the 2^nd respondent is not taking up the said application of the petitioner as there was a huge pendency before him and it is unlikely that it would be taken up for atleast another 6 to 8 months.

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The petitioner contends that without waiting for the application for waiver of pre-deposit/stay in the above appeal to be disposed of by the 2^nd respondent, the respondents 1 and 3 are insisting on payment of disputed

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duty, interest and penalty and are threatening to take coercive action against the petitioner. The petitioner contends that it has good chances of success in the appeal preferred by it before the 2^nd respondent and if it is compelled to pay the disputed duty, interest and penalty pending disposal of the appeal, its appeal would be rendered infructous and therefore prays that directions be issued to respondents 1 and 3 not to coerce it to pay the said amounts pending disposal of the appeal preferred by it. The petitioner also relied upon the judgment of this Court in Anab-E-Shahi Wines v. Appellate Deputy Commissione r^[1] and contended that no coercive action can be initiated for recovery of disputed demand when stay application filed by it is pending before the 2^nd respondent.

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The counsel for the respondents does not dispute that the petitioner has filed an appeal before the 2^nd respondent challenging the Order-in-Original No.45/2012(PRB) dt.28.09.2012 passed by the 1^st respondent and that the application of the petitioner seeking waiver of pre-deposit/stay is pending before the 2^nd respondent since 27.12.2012. It is also not disputed that no date for hearing of the application for waiver of predeposit/stay was communicated to the petitioner by the 2^nd respondent.

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In the facts and circumstances of the case and in

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view of the decision of this Court in Anab-E-Shahi Wines (1 supra), we hold that so long as the interim application of the petitioner in the appeal No.38/2012 (V-II) CE filed by it on 27.12.2012 is pending consideration by the 2^nd respondent, no coercive steps shall be taken by the respondents to recover the disputed duty, interest and penalty pursuant to the Order-in-Original No.45/2012 (PRB) dt.28.09.2012 in File C.No.V/15/13(CE/2012-ADJ of the 1^st respondent.

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The writ petition is disposed of at the admission stage in terms of the above order. No costs.

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____________________________ JUSTICE GODA RAGHURAM

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__________________________________ JUSTICE M.S.RAMACHANDRA RAO Date:25-02-2013 Siva

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[1] (1995) 21 APSTJ 98

M/s.Victory Containers, v. The Additional Commissioner of

Case brief

What is this about?

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M/s.Victory Containers, v. The Additional Commissioner of

Case brief

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