Judgment: 1. Heard Shri J.P. Khaitan, learned Senior Advocate on the Miscellaneous Application for early hearing of Stay Petition filed by the applicant/appellant company. Learned Senior Advocate for the applicant/appellant company submits that the Revenue Authorities have asked them for paying the duty and penalty amounts immediately, and they have sent a copy of their letter dated 25-11-2005 to the Assistant Commissioner for recovery of the same. In view of this, he submits that they have filed a Miscellaneous Application praying that their Stay Petition may be heard at an early date. They have also requested for stay on the recovery proceedings proposed to be initiated by the Jurisdictional Assistant Commissioner of Central Excise till disposal of the Stay Petition filed by them. Learned Senior Advocate relies on the Honourable Rajasthan High Court's judgment in the case of Shree Cement Ltd. v. Union of India , where it had been held by the Hon'ble High Court for recovery of Government dues by coercive measures while assessee's Stay Application was pending before appellate authority [Commissioner (Appeals), CEGAT etc.] forbidden by Board's Circular dated 2-3-1990 and the said Circular was binding on all Central Excise Officers. He submits that the Board's Circular dated 2-3-1990, has not been withdrawn till date. He also submits that the Tribunal in its recent decision in the case of Loyal Super Fabrics v. Commissioner of Central Excise, Pondicherry has held that in view of C.B.E. & C.'s Circular No. 396/29/98-CX., dated 2-6-1998 issued following decision of Mumbai High Court in Writ Petition Nos. 3919/87 , 422/88 and 518/88 that no coercive action should be taken to realise arrears of revenue during pendency of stay application; but an interim order of stay of recovery be granted. Lastly, he submits that a similar view has been taken by the Tribunal in Abhishek Industries Ltd. v. Commissioner of Central Excise, Ludhiana . In view of this, he submits that their Miscellaneous Application for early hearing of the Stay Petition filed by the applicant/appellant company, may be allowed.
2. Heard Shri A.Hore, learned J.D.R. for the Revenue. He submits that the Excise Authorities are bound by the circulars issued by the Board/Ministry. In this context, he relies upon the Board's Circular No. 788/21/2004-CX., dated 25-5-2004 issued from F. No. 208/41 /2003-CX.6.
3. We have heard both sides. We find that the Board's Circular as referred to by the learned J.D.R. is applicable in the case of first appeal filed before the Tribunal against an Order of the Commissioner.
This Circular does not talk about anything on the second appeal filed before the Tribunal. We find that the Hon'ble Rajasthan High Court's judgment in the Shree Cement Ltd. referred to above, is quite specific.
This has restrained the Central Excise Officers from taking any coercive action against the applicant/appellant company herein, when their Stay Petition is pending before an appellate authority. The above view has also been taken by this Tribunal in the decisions quoted above. In view of this, we hold that the Revenue Officers should not take any coercive measure while the Stay Petition of the applicant/appellant company is pending before the Tribunal. In view of this, we give an Interim Order of stay of recovery till their Stay Petition is disposed of by this Tribunal. Amount of duty involved in the Appeal is only Rs. 7.4 lacs (Rupees seven lakh forty thousand). We do not find any ground for early hearing of the matter. The subject Miscellaneous Application for early hearing is disposed of accordingly.