PRABIR KUMAR MAJUMDAR Vs. ASSISTANT COLLECTOR CENTRAL EXICISE

JUDGEMENT

(1.) Subsequent to the passing of the order yesterday, it was pointed out by the petitioners that the bank guarantee had been kept renewed. As such I recall the order and dispose of the writ petition on merits. The writ petitioner has challenged a demand of the respondent No. 1 for excise duty in respect of the goods manufactured by him. An order dated 16-4-1985 passed by the Respondent No. 1 directing payment of excise duty was challenged by the petitioner in an appeal to the Collector. During the pendency of the said appeal, the petitioner moved an application under Article 226 of the Constitution before this Court. An order was passed staying realisation of the duty claimed pending the said appeal subject to the petitioner depositing a sum of Rs. 50,0007-and furnishing a bank guarantee for the amount claimed. The said appeal was dismissed and the demand as contained in the order dated 16-4-1985 was upheld by the Collector. The petitioner thereafter filed an appeal from the order of the Collector to the Customs, Excise & Gold (Control) Appellate Tribunal. The petitioner's appeal was rejected by the Tribunal. The petitioner thereafter made an application under Section 35G of the Central Excises & Salt Act, 1944 to this Court. The reference application was heard and an order was passed by the Reference Bench of this Court directing the Tribunal to state a case. The questions framed in the reference relate to the liability of the petitioner to pay excise duty in respect of the said goods manufactured by him.

(2.) The Excise authorities are now seeking to recover the dues amounting to Rs. 1,03,715.82 arising out of the order dated 16/4/1985. The petitioner contends that pending the hearing of the case by the High Court under Section 35K, the recovery proceedings should be stayed.

(3.) Section 35N of the Central Excises & Salt Act, 1944 provides inter alia that notwithstanding that a reference has been made to the High Court, sums due to the Government as a result of an order of an Appellate Tribunal shall be payable. This section corresponds to Section 265 of the Income Tax Act, 1961. Therefore the general principles governing the question of grant of stay of recovery proceeding should be the same.