1. This petition has come in a peculiar circumstance. The petitioner has preferred an appeal before the CEGAT against the order passed by the respondent No. 3, Deputy Commissioner, Central Excise and Customs, Ajmer. He also moved an application for staying the recovery during the pendency of stay application before the CEGAT and which was pending for consideration and no final order has been passed on that application for staying the recoveries and dues during the pendency of stay application or application filed before the Tribunal. The Central Board of Excise and Customs had issued guidelines for the officers of the department to follow and deal with the guidelines for recovering the dues during the pendency of stay petition/application before the appellate authorities. It will be apposite to reproduce the circular dated March 2, 1990 (annexure 9) hereinbelow :
Circular No. 7/90-CX.6, dated March 2, 1990 [From F.No. 208/107/89-CX.6] Government of India Central Board of Excise and Customs New Delhi.
Subject : Central Excise--Recovery of dues during pendency of stay petition/application--Regarding.
Reference instructions issued by the Ministry vide F.No. 208/31/ 88-CX.6, dated 18th November, 1988 (Circular No. 80/88-CX.6) on the subject mentioned above. Suggestions for enhancing the waiting period from the present 3 months as laid down under the above instructions to 5 months before initiating coercive measures for recovery of Central excise dues have been received from the trade.
The Board has carefully examined the suggestions and has not accepted the same. However, the Board felt that it was hardly fair and just to proceed with the recovery proceedings while application for stay of the impugned order or for waiver of the condition of pre-deposits was pending before the appellate authorities. The Board, therefore in partial modification of the letter dated 18th November, 1988 has decided to accept the ratio of the judgments delivered by the Bombay High Court in Writ Petition Nos. 3919 of 1987, 422 of 1988 and 518 of 1988. Copies of the judgments are enclosed for circulation and guidance of the field formations. Collectors (Appeals) are separately being directed to dispose of stay applications expeditiously."
2. Annexure 10 dated June 2, 1998 which relates to the similar directions issued in respect of pendency of appeal and stay application in respect of staying the recovery of duty demanded as result of adjudication till such time as the appeal/stay applications filed by the appellant has been disposed of by Commissioner (Appeals). The circular, annexure 10 reads as below :
Circular No. 392/29/98-CX, dated June 2, 1998 [From F.No. 201/02/98-CX.6] Government of India Ministry of Finance (Department of Revenue), Central Board of Excise & Customs, New Delhi.
Subject : Central Excise--Whether coercive measures to recover duty demanded as result of adjudication till such time as the appeal/stay applications filed by the appellant has been disposed of by Commissioner (Appeals) be taken--Regarding.
On the question of recovery of dues during pendency of stay application before the Commissioner (Appeals), the matter was examined by the Board and necessary instructions were issued vide Circular No. 23/90/CX.6, dated December 12, 1990 issued from F. No. 209/107/89-CX.6 and Circular No. 16/92-CX.6, dated November 12, 1992 issued from F.No. 208/59/92-CX.6. According to these instructions, Central excise officers were to allow a period of three months from the date of decision for payment of dues adjudicated before resorting to coercive measures to recover such dues. However, if the stay application is rejected by the Commissioner (Appeals) even before the lapse of time of three months, recovery proceedings should be initiated immediately. The Commissioner (Appeals) were also directed to dispose of stay application within the period of two months in case the Commissioner (Appeals) was not in a position to dispose of the main appeal within the same time frame.
2. Recently, the Mumbai High Court has ordered, that Commissioner (Appeals) may be directed to dispose of stay application within the specified time-limit and during the pendency of stay application no coercive action should be taken to realise the arrears of revenue.
3. Keeping the aforesaid in view, the Board has decided that no coercive action should be taken to realise the dues till the disposal of the stay application by the Commissioner (Appeals) and the Commissioner (Appeals) must dispose of the stay application within one month of its filing."
3. It is relying on the circular dated June 2, 1998, the Additional Commissioner, Central Excise and Customs, Jaipur, issued instructions (annexure 12) on December 2, 2000 stating that the action of recovery may be kept pending only where such stay applications are pending before the Commissioner (Appeals). In other cases, the action for recovery be taken irrespective of the fact that the stay applications are pending before the appellate authority other than Commissioner (Appeals). In pursuance of these instructions during the pendency of stay application before the CEGAT, Superintendent, Central Excise Range, Beawar, made a demand vide annexure 11 dated January 8, 2001 upon the petitioners to deposit the amount of dues which was subject-matter of appeal before the CEGAT and in respect of which an application for staying the recovery of dues during the pendency of appeal was made before the Tribunal and the same was pending for consideration before it.
4. Aggrieved with aforesaid notice this petition has been filed, inter alia, on the ground that general directions issued by the Board in its circular dated March 2, 1990 which are not superseded by specific directions vide circular dated June 2, 1998 in response to a query made about the matters before the Commissioner (Appeals) the circular issued by the Additional Commissioner, vide, annexure 12 tantamounts to supersede the directions issued by the Board and consequently, annexure 11, is also contrary to that.
5. Mr. Bhansali, learned counsel appearing for the respondents places reliance on annexure 10 dated June 2, 1998 contending that this being specific directions must exclude the applicability of general directions contained in annexure 9 dated March 2, 1990.
6. Having given our anxious consideration we are of the opinion that the contention raised by learned counsel for the petitioner has substance and merits acceptance. The context and text of two circulars issued by the Board, i.e., annexure 9 and annexure 10 read together leaves no room of doubt that while annexure 9 lays down guidelines generally in respect of course to be adopted by the recovery officers during the pendency of stay petition before the higher forums and is founded on Board's acceptance of the general principle that
"it was hardly fair and just to proceed with the recovery proceedings while application for stay of the impugned order or for waiver of the condition of pre-deposit was pending before the appellate authorities"
.
7. The context of the circular reveals that prior to issuance of this Circular the Board vide its earlier circular dated November 18, 1988 referred to in exhibit 9 itself had issued instructions to all officers for not to proceed for recovery of demands by coercive process only for a period of three months in such cases and it was considering the suggestions for enhancing the waiting period to five months in place of three months then currently in vogue. This suggestion of extending waiting period by a straitjacket direction was not considered expedient. Instead the Board issued a broad based general direction in consonance with fairness of procedure demanded of State authorities and instructed its officers not to proceed with recovery proceedings until application for staying such demand is pending before appellate authorities and is not decided. In issuing this direction the Board was giving effect to its acceptance of ratio laid by the Bombay High Court a decision referred to in the said circular.
8. With this premise the Board decided to issue the circular dated March 2, 1990 in which the reliance was placed in the judgment of Bombay High Court delivered in Nos. 3919 of 1987, 422 of 1988 and 518 of 1988 and other connected matters and to follow the same in the matter of staying the recovery in cases where the stay application or application for waiver of the condition of pre-deposit was pending before the appellate authorities. This circular itself makes reference that separate instructions are being issued to Commissioner (Appeals), i.e., to say it is apparent that this circular is for general guidelines to be followed by recovery officers of the Central Excise Department during pendency of appeal before all levels of higher forums ; and further specific directions were to be issued in relation to the matters pending before the Commissioner (Appeals).
9. It appears that some discrepancy prevailed in issuing directions to Commissioner (Appeals) in pursuance of circular dated March 2, 1990 and that lead to issue of circular dated June 2, 1998 (annexure 10). The circular says that on the question of recovery dues during the pendency of appeal before the Commissioner (Appeals) the matter was examined by the Board and necessary instructions were issued and consequently the instructions as reproduced above were issued for the purposes of effecting the recoveries during the pendency of appeal and stay application before the Commissioner (Appeals) with direction to Commissioner (Appeals) to dispose of the stay application within one month from its filing as far as possible. Obviously the guidelines in the case of Commissioner (Appeals) vitally made a distinction, by directing the Commissioner (Appeals) to dispose of the application for stay within a time frame, which time frame direction was not contained in general directions which related to stay of recovery during pendency of such applications before authority superior to Commissioner (Appeals) and was governed by statutory provisions. While no distinction has been made in policy decision of not putting the coercive methods of recovery of demands which were meant for recovery officers, further directions contained under annexure 10 was for the authority seized of pending applications. Obviously, specific guideline issued for specific purpose cannot supersede a general guideline issued on the basis of fair and just procedure to be adopted during the pendency of stay application that no coercive action be taken to realise the arrears of revenue as contained in circular dated March 2, 1990 (annexure 10) as enunciated by the Bombay High Court in its judgment referred to in the circular.
10. The contextual matrix of annexure 10 reveals that this circular was issued in response to a limited consideration of course to be adopted by the Central excise officers resorting to coercive measures to recover duty till such time as appeal/stay application filed by the assessees have been disposed of by Commissioner (Appeals). From the text of the circular it further appears that notwithstanding general directions issued under circular dated March 2, 1990, under the different circulars issued specifically with reference to stay of recovery proceedings before Commissioner (Appeals) still the Central excise officers to allow a period of three months (as envisaged under circular dated November 18, 1988 referred to in exhibit 9 dated March 2, 1990) from the date of adjudication before resorting to coercive measures to recover such dues, irrespective of the fact whether such stay application or appeal has been disposed of or not. In this connection the circular has referred to earlier instructions dated December 12, 1990 and November 12, 1992. Under these circulars it was further envisaged that if stay application was rejected by the Commissioner (Appeals) even before the expiry of three months, the recovery proceedings must be started immediately without awaiting the expiry of three months.
11. In the aforesaid scenario keeping in view the decision of the Mumbai High Court, as in the case of circular dated March 2, 1990 (annexure 10) the Board issued like instructions as under annexure 9 to all Central excise officers not to resort to realise dues till disposal of stay application by the Commissioner (Appeals) without presenting any upper time-limit for awaiting decision of stay application. However, it impressed upon Commissioner (Appeals) also to decide the stay application as far as possible within one month.
12. By no stretch of imagination bringing the practice for waiting period before resorting to coercive measures in case appeal is pending before Commissioner (Appeals) at par with general principle accepted in circular dated March 2, 1990 can be read so as to override the direction contained in circular dated March 2, 1990 of general application irrespective of the forum at which such application is pending. Circular, exhibit 10, is only of clarificatory nature of making at known to the officers of Central Excise Department to the acceptability of general principle of fairness by the Board at all level the course to be adopted during the pendency of stay applications, and remaining undisposed of. This part of the direction is not a deviation from circular, annexure 9.
13. The Additional Commissioner in our opinion has totally misconceived the circular dated June 2, 1998 as a guideline for requiring effecting the recoveries during the pendency of stay application before any other forum except before the Commissioner (Appeals), particularly before CEGAT.
14. In view of that we are of the opinion that circular dated March 2, 1990 binds all Central Excise officers to stay their hands off resorting to coercive measures of recovery during the pendency of stay petition before the CEGAT and no recovery can be effected until that application has been disposed of in accordance with law.
15. The writ petition is therefore allowed. Annexures 11 and 12 are quashed. No order as to costs.