- (1.) INSTANT bunch of petitions since involves common question, hence being decided by the present order. Instant petitions u/Art. 226 of the Constitution of India have been filed assailing the Circular dated 1 -1 -2013 of the Central Board of Excise and Customs (C.B.E. and C.) issuing certain directives to the concerned authorities for initiation of recovery proceedings against confirm demand while the proceedings remained pending before the appellate authorities in supersession of such circulars issued in this regard by the Department from time -to -time for its implementation with immediate effect.
(2.) THE assessees are basically aggrieved by the stipulation which has now been brought into force and the effect of which is that although the stay application has been filed along with the appeal is pending before the competent appellate authorities/CESTAT, recovery of such demand shall be proceeded on the expiry of stipulated period, however, in certain cases immediately.
(3.) THE contention of the counsel for the petitioner is that coercive methods could not be permitted for initiation of recovery proceedings pending stay applications and could not be disposed of due to unavailability of appellate authority and without any default on the part of the assessee and there is no such allegation that delay in disposal of stay application is attributed to the assessee petitioners and still if recovery is being permitted to be made in terms of the directives issued by the Department vide its Circular dated 11 -1 -2013 and the stay application remained pending on the file of the decision making authority it penalized the assessee for the situation over which the assessee has no control and such action in the guise of Circular dated 11 -1 -2013, would be treated to be arbitrary and violative of Art. 14 of the Constitution. The Circular dated 1 -1 -2013 came to be examined by the Division Bench of High Court of Bombay in the bunch of petitions and that came to be decided vide judgment dated 1 -2 -2013 [ : 2013 (288) E.L.T. 481 (Bom.)] and taking note of the fact situation, the Division Bench of the High Court of Bombay after examining the mechanism which has been provided under the provisions of central Excise Act, 1944 and Customs Act, 1962 and cognate legislation in this regard finally observed ad infra: 17. For these reasons, we have come to the conclusion that the provisions contained in the impugned circular dated 1 January 2013 mandating the initiation of recovery proceedings thirty days after the filing of an appeal, if no stay is granted, cannot be applied to an assessee who has filed an application for stay, which has remained pending for more that a reasonable period, for reasons having a bearing on the default or the improper conduct of an assessee, recovery proceedings can well be initiated as explained in the earlier part of the judgment. 18. In the lead writ Petition, the hearing of the application for stay has been adjourned for administrative reasons not bearing upon the conduct of the assessee and the application is now listed on 5 February 2013. In the circumstances, we see no reason or justification for the initiation of recovery proceedings despite the pendency of the stay application before the CESTAT. We would request the CESTAT to take up the stay application for early disposal and preferably within a period of eight weeks of the date on which an authenticated copy of this order is produced before it. We direct that in the meantime no coercive steps for the recovery of the demand shall be initiated. 19. It is not in dispute, during the course of the hearing, that in none of the present batch of cases, has there been any dilator tactic or improper conduct on the part of the petitioner -assessees as a result of which the applications for stay have remained pending. The stay applications shall be taken up for expeditious disposal, preferably within a period of eight weeks and in the meantime, no coercive steps for the recovery of the demand shall pursued. We accordingly dispose of the petitions in terms of the directions as aforesaid. ;