- (1.) WITH the consent of the learned counsel for the parties, the writ petition was heard and it is being disposed of finally.
(2.) THE petitioner has preferred this writ petition with the following prayers:- (i)the impugned Circular No. 967/01/2013-CX dated 1/1/2013 (Annexure-5) may be quashed and set aside. (ii)it may be declared that the Central Board of Excise and Customs has no statutory authority or power to issue the impugned Circular No. 967/01/2013-CX dated 1/1/2013. (iii)recovery proceedings, particularly Notice dated 4/2/2013 (Annexure-8) may be quashed and set aside. (iv)any other appropriate writ, order or direction which may deems just and proper in the facts and circumstances of the case may kindly also be issued in favour of the petitioner. Learned counsel for the petitioner submitted that order in original was passed on 6th September, 2011 by Assessing Officer, whereby demand of central excise duty was confirmed. The petitioner preferred statutory appeal before the Commissioner (Appeals) under Section 35 of the Central Excise Act, 1944 on 4 th November, 2011 along with stay petition. He submitted that his appeal as well as stay petition both are pending before the Appellate Authority and no date has been fixed by the Appellate Authority for hearing of the stay petition. He further submitted that the respondent department has issued a Circular dated 1 st January, 2013 to the effect that recovery should be made from those assessee also where appeal is preferred but no interim stay order has been passed. In pursuance of the said Circular, a recovery notice dated 18 th January, 2013 has been given to the petitioner to make the payment. He submitted that so far as Circular dated 1st January, 2013 is concerned, the same has been quashed by the co-ordinate Bench of this Court, Bench at Jaipur. He also submitted that in similar matter, Appellate Authority has been directed to decide the stay petition and till then recovery has been stayed. Therefore, the same order may also be passed in the present case.
(3.) LEARNED counsel for the respondent has not disputed the above facts submitted by the learned counsel for the petitioner. However, he has submitted that interim order should be passed only for a limited period till the disposal of the stay petition before the Appellate Authority.;