At, High Court of Gujarat At Ahmedabad
By, THE HONOURABLE MR. JUSTICE AKIL KURESHI & THE HONOURABLE MS. JUSTICE SONIA GOKANI
For the Appellant: Dhaval Shah, Advocate. For the Respondent: Manisha Lavkumar, Advocate.
Akil Kureshi, J. (Oral)
1. Petitioners have challenged the recovery notice dated 10-1-2013 as at Annexure B to the petition in following factual background.
2. The petitioners are facing seven separate orders-in-original passed by the adjudicating authority, details of which are available at page 44 of the petition. Against these orders passed on different dates between October 2009 and May 2012, the petitioners have filed appeals before the appellate Commissioner. All such appeals, we are informed, were filed within the period of limitation prescribed. Along with such appeals, stay petitions/pre-deposit waiver applications have been filed. No orders were passed by the appellate Commissioner either on such interim applications or on the appeals. Suddenly, the impugned notice dated 10-1-2013 came to be issued relying on the guidelines issued by the C.B.E. & C. in its circular dated 1-1-2013.
3. In a group of petitions being Special Civil Application Nos. 1124 of 2013 and connected petitions [2013 (290) E.L.T. 161 (Guj.)], we had considered the validity of C.B.E. & C. 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.
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.
We, therefore, uphold condition No.11 without any modification.
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."
4. Applying such conclusions to the facts of the present case, we are of the opinion that the impugned notice cannot survive. The same is therefore quashed. The resultant attachment notice is also set aside.
5. We are at a loss to understand why the Appellate Commissioner is not able to decide even the interim applications for nearly three years. We are informed that the issues are
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identical in all the appeals and none of the issues would occupy too much time of the Commissioner. Under the circumstances, we direct the Appellate Commissioner to decide and dispose of these appeals latest by 31st July, 2013. Till the same are decided, there shall be no recovery of the demand confirmed by the Adjudicating Authority. 6. With the above directions, the petition is disposed of.