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2014 (9) TMI 221 - HC - Central ExciseRecovery of dues when appeal with stay application is pending before CESTAT - Classification of isolators - Classification under Chapter 85.35 or 85.38 - Held that:- The second appeal with the waiver-cum-stay petition filed by the petitioner before the second respondent. Tribunal is still pending consideration, as there was no continuous sitting of the Bench. In the meanwhile, the first respondent had passed the impugned order. It is the submission of the learned counsel for the petitioner that the first respondent has no right to pass the impugned order when the waiver-cum-stay petition is pending before the Tribunal and it may defeat the very object of the waiver petition. But, the petitioner having failed to comply with the condition of pre-deposit of ₹ 1,50,00,000/- imposed by the Commissioner (Appeals), it cannot find fault with the first respondent’s action in passing the impugned order. - It is settled law that when there is no stay of the proceedings, it is always open to the authorities to initiate appropriate recovery proceedings. However, the first respondent, in the light of the directions issued by this Court in Writ Petition No. 34350 of 2003, ought to have considered the case of the petitioner. During the course of arguments, it is reported that there is now regular sitting of the Bench and if the second respondent is directed to dispose of the waiver-cum-stay petition filed by the petitioner within a stipulated period, the entire grievance of the petitioner would be redressed. - CESTAT to hear the waiver-cum-stay petition filed by the petitioner and dispose of the same in accordance with law - recovery proceedings stayed.
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