2018 (6) TMI 1304 – MADRAS HIGH COURT – 2018 (361) E.L.T. 962 (Mad.) – Validity of interim order of stay – auction of property for realization of dues – the order was challenged after a long period of 7 years – Held that:- Considering the fact that the writ petitioner has chosen to challenge the Order-in-Original after a period of seven years and considering the fact that the same was entertained by granting an interim order without assigning any reason, we are fully satisfied that the appellants have made out a case to interfere with the order passed by the writ Court, even though the same was made at the admission stage – the properties of the writ petitioner were already under attachment from the year 2011 onwards and such properties were brought for public auction as early as on 28.02.2018 and the same was purchased by a successful bidder on 16.03.2018 and in whose favour, a delivery order has also been issued on 20.03.2018, we do not find any reason or justification to sustain th
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ee/writ petitioner. The said order was put to challenge before the writ Court after seven years, only when the properties belonging to the writ petitioner was put into public auction for realization of the tax due and other amount payable by the writ petitioner. 3.Mr.B.Vijay Karthikeyan, learned Senior Standing Counsel for the appellants vehemently contended that the very entertaining of the writ petition against the Order-in-Original that too made as early as on 27.04.2011, cannot be sustained apart from the fact that the writ Court has also chosen to grant the interim stay of such order at the admission stage itself without even allowing the respondents to put forth their case and bring the actual state of affairs as on the date of filing the writ petition. He further submitted that the properties belonging to the writ petitioner was already under attachment as early as in the year 2011 itself and consequent upon such attachment, e-auction was conducted and third party successful bid
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r submitted that even otherwise, before bringing the property for auction, the appellants/respondents should have issued notice to the writ petitioner. 5.We heard both sides and perused the materials placed before this Court. 6.At the time of entertaining the writ appeal, we have directed the parties to maintain status quo as on 27.04.2018 and the said order of status quo is still in force. 7.The present writ appeal is arising out of an interim order of stay granted by the writ Court, while entertaining the writ petition challenging the order of the adjudicating authority. The matter pertains to the service tax dispute. Undoubtedly, as against the Order-in-Original, a statutory appeal remedy is available to the aggrieved party before the appellate authority, namely, Commissioner of Customs and Central Excise (Appeals) and such appeal shall also to be filed within the prescribed period of limitation. It is the case of the writ petitioner that they are not aware of the order passed by th
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n the part of the writ petitioner in challenging the impugned proceedings after such inordinate delay of seven years. 9.Perusal of the affidavit filed in support of the writ petition would also reveal that the petitioner has not explained as to why they approach this Court after a period of seven years without even filing a statutory appeal within the prescribed period of limitation, except to state that the writ petitioner was constrained to close down their operations due to severe financial crunch and further labour unrest and management rejigs have contributed to valuable time having been lost much to the writ petitioner's own prejudice. Needless to say that when the writ petitioner had suffered an order at the hands of the adjudicating authority as early as on 27.04.2011, unless and until such order is put to challenge before the appropriate forum immediately, the writ petitioner cannot be heard to say that due to financial crunch, the challenge was not made immediately. There
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ition, the writ Court entertained the writ petition and granted the interim stay of the impugned proceedings also without assigning any reason for granting such interim order. Even though the same has been granted at the admission stage, a prima facie of view should have been stated for granting such interim order, more particularly, when the very impugned proceedings was passed as early as on 24.07.2011 and as against such proceedings, a statutory appellate remedy was very much available to the writ petitioner before the concerned appellate authority. It is relevant to refer the recent decision of the Apex Court relied on by the learned senior standing counsel for the appellants, reported in (2018)3 SCC 85, (cited supra), at this juncture, wherein the Apex Court at paragraph Nos.15 and 16 as observed as follows:- 16. It is the solemn duty of the Court to apply the correct law without waiting for an objection to be raised by a party, especially when the law stands well settled. Any dep
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in mind before passing the impugned interim order:- "46. It must be remembered that stay of an action initiated by the State and/or its agencies/instrumentalities for recovery of taxes, cess, fees, etc. seriously impedes execution of projects of public importance and disables them from discharging their constitutional and legal obligations towards the citizens. In cases relating to recovery of the dues of banks, financial institutions and secured creditors, stay granted by the High Court would have serious adverse impact on the financial health of such bodies/institutions, which (sic will) ultimately prove detrimental to the economy of the nation. Therefore, the High Court should be extremely careful and circumspect in exercising its discretion to grant stay in such matters. Of course, if the petitioner is able to show that its case falls within any of the exceptions carved out in Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad, Whirlpool Corpn. v. Registrar of Trade M
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tertained by granting an interim order without assigning any reason, we are fully satisfied that the appellants have made out a case to interfere with the order passed by the writ Court, even though the same was made at the admission stage. Normally, we would have directed the appellants to raise all these points and file vacate stay petition before the writ Court. However, under the peculiar facts and circumstances of the present case, we are not inclined to do so, more particularly, in view of the decision of the Apex Court reported in (2018)3 SCC 85 as referred to supra. 12.Moreover, in this case, as it is stated that the properties of the writ petitioner were already under attachment from the year 2011 onwards and such properties were brought for public auction as early as on 28.02.2018 and the same was purchased by a successful bidder on 16.03.2018 and in whose favour, a delivery order has also been issued on 20.03.2018, we do not find any reason or justification to sustain the in
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