Court refuses to suspend attachment order, directs prompt resolution by CESTAT. Writ petition disposed without costs.

The court declined to suspend the first part of the order of attachment, deeming it futile. Instead, the court directed the CESTAT to promptly hear and resolve the petitioner's stay/waiver petition within three weeks. The writ petition was disposed of without costs.

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Issues Involved:
1. Legality of the order of attachment dated 23-6-2011.
2. Applicability of the C.B.E. & C. Circular dated 25-5-2004.
3. Jurisdiction of the High Court under Article 226 of the Constitution of India.
4. Doctrine of Election.
5. Futility of issuing a writ.

Detailed Analysis:

1. Legality of the Order of Attachment:
The petitioner challenged the order of attachment dated 23-6-2011, which was issued by the 1st respondent during the pendency of a stay application before the CESTAT. The petitioner argued that the order was illegal, arbitrary, and violated the C.B.E. & C. Circular dated 25-5-2004. The order of attachment included amounts demanded for periods that had not been adjudicated, specifically September 2010 to February 2011. The respondents contended that the action was justified under Section 11 of the Central Excise Act, as no show cause notice is required for arrears of revenue.

2. Applicability of the C.B.E. & C. Circular:
The petitioner relied on the C.B.E. & C. Circular dated 25-5-2004, which precludes coercive recovery actions during the pendency of a stay application before the CESTAT. The respondents argued that the circular applies only to disputed duties and not to defaulted amounts. The court noted that the circular is binding on the Revenue as per the Supreme Court's ruling in Ranadey Micronutrients v. Collector of Central Excise, which held that while a circular remains in operation, the Revenue is bound by it.

3. Jurisdiction of the High Court:
The court examined whether it should entertain the writ petition under Article 226 of the Constitution, given that the petitioner had already filed an appeal before the CESTAT. The Doctrine of Election, which suggests that when two remedies are available, the party must choose one, was considered. The court decided not to delve into the merits of the order under appeal before the CESTAT, as the petitioner had opted for the appellate remedy.

4. Doctrine of Election:
The Doctrine of Election was applied, emphasizing that the petitioner had chosen to appeal to the CESTAT and therefore, the High Court should not examine the merits of the order under appeal. The court referenced A.P. State Financial Corpn. v. Gar Re-Rolling Mills and Transcore v. Union of India to support this position.

5. Futility of Issuing a Writ:
The court considered whether issuing a writ would serve any useful purpose. Since the petitioner did not challenge the second part of the order of attachment, which pertained to a different amount, suspending the first part of the order would be futile. The court cited several judgments, including Pramod Kumar v. Medical Council of India and Munindra Kumar v. Rajiv Govil, to illustrate that a writ should not be issued if it would be ineffective or infructuous.

Conclusion:
The court refrained from suspending the first part of the order of attachment as it would be an exercise in futility. Instead, the court directed the CESTAT to hear and dispose of the stay/waiver petition filed by the petitioner within three weeks. The writ petition was disposed of without costs.

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