Pending stay petition can bar recovery proceedings until the appellate tribunal decides the waiver-cum-stay request.

Recovery on an excise duty demand was considered in the absence of a stay, but the assessee's waiver-cum-stay petition was already pending before the appellate tribunal. The Court noted that while recovery is ordinarily permissible without a stay order, the pending stay request should be addressed by the tribunal, especially after resumption of regular sittings. The writ petition was disposed of by directing the tribunal to decide the waiver-cum-stay petition within four weeks, and recovery proceedings were restrained until that decision.

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Issues: Whether recovery proceedings could continue when the assessee's waiver-cum-stay petition was pending before the appellate tribunal.

Analysis: The dispute arose from an excise duty demand and the assessee's challenge thereto was pending before the tribunal along with a petition seeking waiver of pre-deposit and stay of recovery. In the meantime, the department initiated recovery on the footing that no stay order was in force. The Court noted that though recovery is ordinarily permissible in the absence of a stay, the pending waiver-cum-stay petition had to be addressed by the appellate forum, particularly since regular sitting of the Bench had resumed and the grievance could be effectively redressed by an early disposal of that petition.

Conclusion: The writ petition was disposed of by directing the tribunal to decide the waiver-cum-stay petition within four weeks, and recovery proceedings were restrained until then.

Final Conclusion: The assessee obtained interim protection against recovery, while the merits of the excise dispute were left to be considered by the appellate tribunal in the pending stay proceedings.

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