Allahabad High Court
Arvi Components (P) Limited vs Union Of India (Uoi) on 24 April, 1996
Equivalent citations: 1997(90)ELT299(ALL)
JUDGMENT B.M. Lal, J.
1. This petition is taken up in revised list. Sri Ashok Kumar, learned Counsel appears for petitioner. None appears for the respondents, though copy of the petition along with annextxres has already been served on, learned Senior Standing Counsel for the Union of India.
2. By this petition the petitioner seeks an order, direction or writ in the nature of certiorari quashing the impugned order dated 19-4-1996 passed by the Assistant Commissioner, Central Excise, Division II, Ghaziabad, the Respondent No. 4, whereby proceedings for recovery of central excise dues have been initiated against the petitioner. Petitioner further seeks an order, direction or writ in the nature of mandamus commanding the Respondent No. 2 to decide stay/waiver application filed by the petitioner along with appeal.
3. In short, the relevant facts leading to this petition are as under :
4. The petitioner is a Private Limited Co. registered as SSI Unit in the Directorate of Industries, Uttar Pradesh. Since 1992 petitioner is engaged in manufacture of articles of wood falling under Chapter 44 of Central Excise Tariff Act, 1985 (for short the Act).
5. The manufactured articles being excisable, the provisions of the Act were attracted, consequently excise duty was imposed on the same against which petitioner preferred statutory appeal before the Respondent No. 2 along with an application to waive the pre-deposit of excise duty and penalty.
6. Learned Counsel for the petitioner contended that the said waiver application was filed along with appeal on 9-2-1996 but till date the Respondent No. 2 has not decided the same, with the result the Respondent No. 4 is proceeding further for recovery of excise duty and penalty.
7. Learned Counsel invited our attention to a Division Bench decision of this Court in Atma Steels Pvt. Ltd. v. Union of India - 1992 (61) E.L.T. 233 (All.) and Apex Court decision in L. Hirday Narain v. Income Tax Officer, A Ward Bareilly - 1970 (78) ITR 26. In this case the Apex Court pointed out that if statute invests a public officer with authority to do an act in a specified state of circumstances, it is imperative upon him to exercise his authority in a manner appropriate to the case, when party interested and having a right to apply moves in that behalf and circumstances for exercise of authority are shown to exist.
8. On the strength of above mentioned decisions learned Counsel for the petitioner contended that once an application for waiving is filed along with the statutory appeal, the appellate authority is expected to decide the said application as early as possible so as to finalise atleast this aspect of the matter as to whether the appellant has to pre-deposit the excise duty and penalty or not but in the instant case the appellate authority has not decided even this aspect of the matter and is keeping pending the disposal of the waiver application and is thereby enabling the Respondent No. 4 to recover the excise duty and penalty which is under challenge in statutory appeal.
9. Since the Statute provides for moving of waiver application along with appeal and the same has been moved by the petitioner in the instant case, hence in our opinion it is obligatory on the part of the appellate authority to dispose it of. He cannot sit tight over the matter for the months together hanging a sword on the head of the appellant. In this regard less say is better. These days this Court is flooded with the cases where the statutory authorities have failed to exercise the jurisdiction vested in them under the statutes.
10. From the foregoing narration the irresistible corollary is that the inaction on the part of appellate authority in not disposing of the waiver application in respect of pre-deposit of excise duty and penalty within a reasonable time and thereby allowing the authority concerned to proceed on recovery with coersive process; appears to be gross abuse of the process of law on the part of the appellate authority reflecting badly upon his efficiency if not integrity. Therefore, under the facts and circumstances of instant case, this Court has no option but to pass suitable order for disposal of waiver application.
11. Accordingly, the Respondent No. 2 is directed to dispose of the application of the petitioner with regard to waive the pre-deposit of excise duty and penalty positively within a fortnight from the date of production of a certified copy of this order, in case the same has not been disposed of till date. Till then, impugned recovery proceedings initiated by the Respondent No. 4 shall be kept in abeyance.
12. With these directions, instant writ petition is disposed of finally.
13. Copy of the order may be issued within 24 hours on payment of usual charges.