Mark Auto Industries Ltd. v. Union Of India (Uoi)

CW 1414 and CM 2418/98 :-

1. In view of the short controversy arising for decision and the petition having been filed to take care of the matter of the moment, the learned Counsel for the respondents have agreed to have the matter heard finally and dispose of at this very stage.

2. An affidavit sworn in by Shri B.K. Juneja, Deputy Commissioner of Central Excise, Delhi, who is also present in Court, has been filed. The statement made therein takes care of the grievance made on behalf of the petitioners. The learned Counsel for the respondents has submitted that the said affidavit though filed in CW 1346/98 only, may be read as an affidavit filed in the present petition also.

3. Rule DB - There are a number of matters listed today for analogous hearing. The grievance raised in the petition was that an appeal under Section 35 of the Central Excises and Salt Act, 1944 or under Section 128 of the Customs Act, 1962 was filed against the order of adjudication and within the prescribed period of limitation. An application seeking direction in the matter of pre-deposit under section 35f of the central excises & salt act or section 129e of the customs act and also seeking stay of the recovery was filed. However, the same was not taken up for hearing inspite of early hearing having been pressed in some of the cases while action for recovery was initiated. It was submitted that such a coercive action for recovery would defeat the statutory right to appeal available to the petitioner.

4. Interim orders were granted to the petitioners protecting them against the coercive action for recovery till the next date of hearing before the Court or till the date of hearing and orders on the petitioner's application seeking directions in the matter of pre-deposit also seeking stay, from the Commissioner of Appeals.

5. It was brought to our notice by the learned Counsel for both the sides that there was a heavy rush of appeals which it was humanly impossible to take care of by the office of Commissioner (Appeals). Pursuant to the directions given by this Court, on behalf of the respondents a detailed affidavit has been filed. The relevant portion thereof is extracted and reproduced hereunder :-

"2. The Chief Commissioner of Customs and Central Excise, Delhi Zone having jurisdiction over Delhi and Chandigarh have already issued directions dated 24-3-1998 to all the Commissioner of Central Excise at Delhi and Chandigarh not to resort to coercive measures by way of Rule 230 in all such cases where the excise dues are less than 11ac and the parties have already filed stay applications under Section 35F before the Commissioner (Appeals). Even in other cases involving excise dues of over 1 to 5 lacs, instructions have been given not to resort to coercion action till the matter is finally resolved by the Central Board of Excise and Customs. However, cases having revenue stakes of more than 5 lacs, Commissioner (Appeals) have been further directed to hear such cases on priority and stay applications should be decided within a month

3. The Chief Commissioner of Customs and Central Excise, Delhi Zone has already taken notice of the fact that there are more than 1950 appeals pending before Commissioner (Appeals) Delhi and over 2257 appeals pending before Commissioner (Appeals) Chandigarh as on February 1998. Having notice of this fact, the Central Board of Excise and Customs have already been requested on 11-3-1998, to appoint one more Commissioner (Appeals) each at Delhi and Chandigarh and the matter is under active consideration. The alternative of giving additional charge of Commissioner (Appeals) to some other Commissioner level officer is also being examined by the Central Board of Excise and Customs to liquidate pendency of appeals at the level of Commissioner (Appeals).

4. The pendency of Appeals went up due to statutory changes made in Modvat Rules in April, May 1994. All such cases pertaining to transitional period have been decided and are pending at Commissioner (Appeals) level.

5. The Central Board of Excise and Customs on 15-9-1997, have advised the Commissioner (Appeals) to decide the Appeals in toto instead of stay applications only."

6. It is pointed out by the learned Counsel for the petitioner that at the end of Para 2, the affidavit does not set out the decision of the respondent in the matter of recovery pending hearing on the application for stay and pre-deposit before Commissioner (Appeals) where the quantum involved is above 5 lacs of rupees. We see no reason why a different standard can be adopted in those cases. The policy decision taken by the respondents not to effect recovery till date of decision on application for stay cum pre-deposit under section 35f of central excises & salt act or section 129e of customs act should be applicable to such cases also.

7. Subject to the above said modification the CWP and the CM be treated as disposed of in the terms set out in the affidavit filed on behalf of the respondents. No order as to costs.