TaxTMI 
TaxTMI 
2013 (5) TMI 734
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....n 8-11-2010, contesting the allegations in the show cause notice. The 2nd respondent passed the order-in-original dated 28-1-2011, a copy of which was received by the petitioner on 2-2-2011. Aggrieved thereby, the petitioner filed an appeal under Section 35B of the Central Excise Act, along with a stay application, before the CESTAT on 20-4-2011. The 3rd respondent issued notice dated 23-3-2011 demanding the amount for the subsequent period, which was followed by another notice dated 15-4-2011. The petitioner replied that they had already filed an appeal in respect of the same issue for the earlier period. They contended that no show cause notice had been issued by the department prior to passing the order of attachment for the subsequent period, and there was no adjudication in so far as the demand relating to the period September, 2010 to February, 2011 was concerned, corresponding to the notice issued by the 3rd respondent dated 23-3-2011. 3. While matters stood thus the 1st respondent issued an order of attachment dated 23-6-2011, under Section 11 of the Central Excise Act, for detaining the goods of the petitioner for recovery of the disputed duty in respect of a part of wh....
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....d and twenty six only), along with penalty of Rs. 10 lakhs and interest of Rs. 1825/-, and penalty of Rs. 2 lakhs on the Managing Director is said to be due, under the Act, from the petitioner as arrears of revenue payable by them as confirmed in the order-in-original dated 28-2-2011 passed by the Commissioner of Central Excise, Hyderabad. The second part of the impugned order is for Rs. 1,33,49,586/- (One crore thirty three lakhs forty nine thousand five hundred and eighty six only) being the amount of duty defaulted during the period September, 2010 to February, 2011 by the petitioner, and for recovery of which notice dated 23-3-2011 and 15-4-2011 had been issued by the Range Officer, Patancheruvu, Hyderabad. 6. While the order-in-original dated 28-1-2011, which forms the basis of the first part of the order of attachment, is under challenge before the CESTAT, the second part of the order of attachment is not. Sri C. Kodandaram, Learned Senior Counsel appearing on behalf of the petitioner, would submit that he does not seek adjudication of the second part of the order, and it would suffice of the petitioner is given liberty to challenge the second part of the order by initiati....
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.... Board dated 25-5-2004 falls within the ambit of Section 37-B of the Act was not considered in the said Division Bench judgment. 10. However, in Ranadey Micronutrients (supra), the Supreme Court held that the circulars, referred to in the said case, were issued by the Board under the provisions of Section 37B; that they did not so recite did not mean that they did not bind Central Excise officers, or become advisory in character; if the circular was contrary to the terms of the statute, it must be withdrawn; but, while the circular remained in operation, the Revenue was bound by it, and could not be allowed to plead that it was not valid; and it did not lie in the mouth of the Revenue to repudiate a circular issued by the Board on the basis that it was inconsistent with a statutory provision. In the light of the observations, in Ranadey Micronutrients (supra), it would be wholly inappropriate for us to dwell further into the question whether the circular dated 25-5-2004 is ultra vires Section 37B of the Act. We shall proceed on the basis that the circular dated 25-5-2004 binds the revenue. 11. Under Section 35B(1)(a) of the Act, any person aggrieved by a decision or order pas....
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....oice of one of them. [Transcore v. Union of India - (2008) 1 SCC 125 = 2007 (3) SCJ 201]. As the petitioner has elected to file an appeal, which is pending before the CESTAT, the merits of the order-in-original passed by the Commissioner ought not to be examined by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India. 14. The petitioner has sought stay of the order of attachment pending disposal of their stay application by the CESTAT, relying on the C.B.E. & C. Circular, dated 25-5-2004. In view of the Circular dated 25-5-2004, and as a stay/waiver application is pending adjudication before the CESTAT, we were initially inclined to suspend operation of the order of attachment dated 26-3-2011 on condition that the petitioner furnished a bank guarantee for the amount allegedly due. We are, however, constrained to refrain from passing such an order as what remains under challenge in this Writ Petition is merely the first limb of the order of attachment of Rs. 1,36,64,126/- with interest and penalty. The petitioner has sought, and has been granted, liberty to question the second limb of the order of attachment relating to the duty default of Rs.....