TRANS ASIA CARPETS LIMITED Vs. ASSISTANT COMMISSIONER

JUDGEMENT

(1.) Heard counsels for the parties.

(2.) It appears that an order dated 8th March 1991 was passed against the Petitioner by the Assistant Commissioner, Central Excise Division III, Ghaziabad vide Annexure-3 to the Writ Petition. In pursuance of that order the Petitioner made deposit under protest. Thereafter the Petitioner filed an appeal, which was allowed by the Commissioner (Appeals) on 30th June 1992 vide Annexure-4 to the Writ Petition. Against the order of the Commissioner (Appeals) the Department has filed a second appeal before the CEGAT. However, it is alleged in para 15 of the Petition that no stay order has been passed by the CEGAT. The Petitioner has stated in Para 13 of the Petition that he made a prayer for refund. This fact is not disputed in para 14 of the Counter-Affidavit.

(3.) It is settled law that mere filing of an appeal does not amount to stay of proceeding vide Super Electronics v. Assistant Commissioner of C.Ex., Ghaziabad , 1996 (83)ELT268 (All ) and Union of India v. Kamlakshi Finance Corporation AIR1992 SC 711 , 1994 (46 )ECC129 (SC ), 1991 ECR486 (NULL ), 1991 (55 )ELT433 (SC ), JT1992 (1 )SC 85 , 1991 (2 )SCALE635 , (1992 )1 SCC648 , 1992 Supp(1 )SCC443 , 1991 (2)UJ617 (SC ), [Para 6]. Hence, unless there is a stay order obtained by the Department, it has to comply with the order of the Commissioner (Appeals) dated 30th June 1992.