M.Katju, D.R.Chaudhary, JJ. - (1.) Heard learned counsel for the parties.
(2.) Against the impugned order of the Additional Collector which is endorsed on the certificate (Annexure-5 to the writ petition) in our opinion the petitioner has a right of appeal under Section 11 of the U. P. Excise Act. The Supreme Court in Titaghur Paper Mills v. State of Orissa, AIR 1983 SC 603 and Assistant Collector v. Dunlop India, AIR 1985 SC 330, has held that in tax matters particularly there should normally be no short-circuiting of the statutory remedies of filing appeal/revision. Hence in view of the fact that the petitioner has an alternative remedy of filing an appeal before the Excise Commissioner under Section 11 of the U. P. Excise Act, we are not inclined to interfere with the impugned order under Article 226 of the Constituion. This is also the view taken by this Court in Shanker Prasad Jaiswal v. Collector. 1985 UPTC 105.
(3.) It has been held by the Supreme Court in I. T. O. v. Mohammed Kunhi, AIR 1969 SC 430, that the power of stay is Inherent in the power of appeal. Hence if the petitioner files an appeal before the Excise Commissioner against the impugned order along with a stay application, the stay application shall be decided as expedltiously as possible.;