Gujarat High Court
Katira Construction vs Union Of India Through on 26 March, 2013
Author: Akil Kureshi
Bench: Akil Kureshi
KATIRA CONSTRUCTION....Petitioner(s)V/SUNION OF INDIA THROUGH SECRETARY C/SCA/3342/2013 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 3342 of 2013 ================================================================ KATIRA CONSTRUCTION....Petitioner(s) Versus UNION OF INDIA THROUGH SECRETARY & 4....Respondent(s) ================================================================ Appearance: MR AP NAINAWATI, ADVOCATE for the Petitioner(s) No. 1 MR YN RAVANI for the Respondent(s) No. 2 - 3 NOTICE NOT RECD BACK for the Respondent(s) No. 1 , 4 - 5 ================================================================ CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI and HONOURABLE MS JUSTICE SONIA GOKANI Date : 26/03/2013 ORAL ORDER
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI) Petitioner has challenged the steps initiated by the respondents for recovery of duty demand confirmed by the order in original passed by the Commissioner on 25.7.2012. Against such order, the petitioner has preferred appeal before the Tribunal along with stay petition within the period of limitation prescribed. It is not in dispute that the Tribunal had fixed various dates of hearing of such stay petition, but no hearing could be taken place for want of availability of member constituting the Bench. It is stated that thereafter, no fresh date has been fixed for hearing by the Tribunal.
In a group of petitions being Special Civil Application Nos.1124 of 2013 and connected petitions, decided on 11.3.2013, we had considered the validity of CBEC circular dated 1.1.2013, under which fresh set of guidelines were issued for causing recoveries of outstanding dues. We had come to the following conclusions:
In the conclusion, condition Nos.3, 6 and 9 are read down as to requiring the recovery officer to initiate recovery proceedings pending appeal and stay application only when it is found that the application remained pending beyond 30 days for the reasons of delay which can be attributed to the assessee. This would have to be necessarily judged by the Revenue authorities before initiating the proceedings. While doing so, if the authorities required any details from the assessee, such as the date of filing of the appeal and the stay application, the stage at which such proceedings are pending and the reasons for non-disposal of such proceedings, the assessees in their own interest would be duty bound to supply the same.
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28. Culmination of the discussion in the preceding paragraph would be that condition No.10 insofar as it provides for immediate recovery as soon as the order is passed in appeal also needs to be read down as to permitting reasonable time to the assessee to seek protection from the appellate forum. This period of reasonable time must be judged in the facts of each case and cannot be equated with full period of limitation.
xxxx xxxx We, therefore, uphold condition No.11 without any modification.
xxxx xxxx None of the clauses of circular dated 1.1.2013 cover such a situation where having granted stay, the Tribunal could not dispose of the appeal within the period of 180 days and therefore, stay would be vacated. This circular is also not part of the specifically rescinded circulars mentioned in para 1 of the impugned circular. In our view, it would also not be covered under the description of any other circular, instruction or letter contrary to the said circular. In that view of the matter, the said circular dated 26.5.2010 would continue to operate in the limited field occupied by the said circular irrespective of the fresh guidelines dated 1.1.2013.
Applying the above conclusions to the facts of the case, recovery steps are quashed. The Tribunal, however, is requested to take up the stay petition of the present petitioner on priority basis and endeavour to dispose of the same preferably by 30th June 2013.
With the above directions, the petition is disposed of.
(AKIL KURESHI, J.) (MS SONIA GOKANI, J.) (vjn) Page 3 of 3