- (1.) We have heard learned Counsel for the parties.
(2.) Against the order of the Assistant Commissioner, Central Excise, Ghaziabad demanding Central Excise duty of Rs. 38,14,890.00, the petitioner has preferred an appeal to the Commissioner of Central Excise (Appeals), Ghaziabad, respondent No. 3 together an application for stay and waiver under Section 35F of the Central Excise Act, 1944. The appeal as well as application filed by the petitioner is still pending adjudication. The Assistant Commissioner, Central Excise, Division IV, Noida-Ghaziabad by notice dated 19-1-1998 has intimated the petitioner that it has not deposited the aforesaid amount and recovery proceeding cannot be stayed unless to stay order is produced. The petitioner was required to deposit the disputed amount within seven days of the receipt of said letter, falling which action under Rule 230 of Central Excise Rules, 1944 will be initiated against the petitioner to recovery the arrears of excise duty by coercive measure. Feeling aggrieved the petitioner has preferred this writ petition.
(3.) The contention of the learned Counsel for the petitioner is that until its application for waiver of pre-deposit of duty and the stay application is decided by the Appellate Authority the respondent cannot be permitted to realise the disputed demand by coercive measure. In support of the contention the reliance was placed upon a decision of this court in Vidhya Ply & Board Pvt. Ltd. v. Union of India - 1992 (61) E.L.T. 231 (All). It may be observed that the appeal together with the waiver and stay applications were filed on 21-8-1997. According to the petitioner the hearing of the appeal was fixed for 24-12-1997 when it was got adjourned by the petitioner but since the no date has been fixed. In the case of Vidhya Ply & Board (supra) in some what similar circumstances a Division Bench of this Court has expressed an opinion that a statutory obligation is cast on the appellate authority where its powers under the proviso to Section 35F are invoked by the person appealing to it, to make such order as it may think fit as regards the payment of duty. Further any inaction on the part of the appellate authority to pass an appropriate order on the application under the proviso, filed before it and in the meanwhile permitting the recovery of disputed dues would amount to a refusal to exercise the discretion when called upon and would frustrate the very purpose and object with which the powers were conferred on the appellate authority to dispense the making of deposit of the disputed dues in an appropriate case. The Court in the case directed the appellate authority to decide the appeal within a specified period and till such time the stay of the recovery proceeding was granted.;