CHARAK PHARMACEUTICALS Vs. UNION OF INDIA UOI

JUDGEMENT

(1.) Appeal admitted. Counsel for respondents waives service. By consent appeal taken on board and called out for hearing. Heard Counsel. The respondent No. 3 - Assistant Commissioner passed order of adjudication holding that the appellants are liable to pay Central Excise duty on Physician samples at the assessable value of identical goods sold through depots. The appellant challenged the order by filing appeal before respondent No. 2 - Commissioner of Central Excise. The appellant also filed application for stay of enforcement of order of adjudication by recovery proceedings. The respondent No. 2 did not hear the application for stay and the same is still pending. In the meanwhile, respondent No. 3 has commenced recovery proceedings in pursuance of order of adjudication. The appellant requested the respondent No. 2 to hear stay application but the request was not granted. The appellant thereupon preferred writ petition before learned single Judge requesting that the recovery proceedings should be stayed till the disposal of the stay application. The learned single Judge by impugned order dated December 22, 1995 dismissed the petition holding that exercise of writ jurisdiction is not warranted. The order of the learned single Judge is under challenge.

(2.) We have heard learned Counsel for the appellant and the learned Counsel for the respondents and in our judgment, it is not permissible for the Assistant Commissioner to commence the recovery proceedings even while the stay application filed by the appellant is pending before respondent No. 2 and is not disposed of. The appellate authority cannot decline to consider the stay application and thereby permitting respondent No. 3 to proceed with the enforcement of the order of adjudication. It is, therefore, necessary to direct that the respondent No. 3 shall not proceed with the recovery in pursuance of the adjudication order as long as respondent No. 2 has not disposed of the stay application.

(3.) Accordingly, appeal is allowed and order dated December 22, 1995 passed by the learned Single Judge in Writ Petition No. 44869 of 1995 is set aside and the respondent No. 3 is directed not to proceed with the recovery of amount from the appellant in pursuance of the adjudication order as long as the stay application filed by the appellant is not finally disposed of by respondent No. 2. In the circumstances of the case there will be no order as to costs.