TMI Blog2011 (11) TMI 353X X X X Extracts X X X X X X X X Extracts X X X X ..... of the appeals within a reasonable time. - Thus respondents liable to refund the amount along with interest. Thus petition stands allowed. - Writ Petition No. 10314 of 2011 - - - Dated:- 2-11-2011 - V.V.S. Rao, Sanjay Kumar, JJ. G. Mohan Rao for the Appellant A. Rajasekhar Reddy for the Respondent JUDGEMENT V.V.S. Rao 1. It is not very often we are called upon to adjudicate a rare case of this nature in which the petitioner company, an assessee under the Central Excise Act, 1944 (hereafter, the Act), seeks redressal by way of a mandamus declaring the action of the third respondent in encashing the Bank Guarantee (BG) given by the petitioner in 1978 - which stood extended from time to time - even while the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supported by a BG of Rs.25,000/- and Rs.10,000/- respectively to cover the provisional assessment order of the third respondent. Thereafter, with or without any official reminders, the petitioner extended the validity of the BG till 2009. The appeal was, however, not disposed of. It is still pending even after about thirty three years. 4. The issue is, however, not only regarding the pendency of the appeal before the first respondent which itself is cause for concern. In 2009, precisely on 08.08.2009, the third respondent addressed the petitioner advising to extend the BGs and communicate the same to him by 24.08.2009. The petitioner immediately responded by sending a letter on 21.08.2009 requesting the third respondent not to encash B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one after the other. Disposal of the appeal 7. A lengthy argument nor elaborate reasoning is required to condemn the attitude of any quasi judicial appellate authority sitting over in a statutory appeal for thirty years and take a plea that the appellant could have pursued the matter in right earnest. The power conferred to decide appeals casts a duty on the designated authority to dispose of appeals expeditiously. Indeed, Section 35A(4A) of the Act as amended by the Finance Act, 2001, requires the Commissioner (Appeals) to dispose of appeal within a period of six months from the date on which it is filed and Section 35(1A) of the Act as amended by the Finance Act, 2004, restricts the power of the appellate Commissioner to adjourn t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... direction to the petitioner to furnish BG was issued in the interests of the revenue during the pendency of the appeal. When the appeal is pending and the BG is encashed by the third respondent even without allowing sufficient time to the petitioner to renew it, it is not only palpably arbitrary but ex facie capricious. When the BG is encashed illegally by public authority, in our considered opinion, the person who furnished the BG is entitled to seek restitution. The power to order restitution is inherent power and cannot be denied to the Court of judicial review. A Division Bench of this Court comprising one of us (SK, J) in M/s. Lanco Kondapalli Power Private Ltd. v Union of India = 2009 (242) ELT 340 (AP) : 2009 (3) ALD 8 (DB) consider ..... X X X X Extracts X X X X X X X X Extracts X X X X
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