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TMI Blog2011 (11) TMI 353X X X X Extracts X X X X X X X X Extracts X X X X ..... the Bank Guarantee (BG) given by the petitioner in 1978 - which stood extended from time to time - even while the petitioner's appeal filed about three decades ago is still pending with the first respondent, as arbitrary and illegal. The shocking state of affairs notwithstanding dispassion calls for an impartial consideration of the short issue that falls for consideration in the background of the following short facts, which are not seriously in dispute. 2. The brief fact of the matter is that the petitioner at the relevant time in 1970s was a manufacturer of PVC cloth (cotton fabrics). He was paying excise duty. In 1973 - 1974, he claimed certain discounts - quantity discounts, packing charges and forwarding and handling charges, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .08.2009. The petitioner immediately responded by sending a letter on 21.08.2009 requesting the third respondent not to encash BGs during the pendency of the appeal. Nevertheless, ignoring the request, the third respondent encashed the BG on 25.08.2009. Even thereafter, the appeal was not disposed of. The petitioner's attempts to get the status quo ante restored with reference to BG failed. He, therefore, filed the instant writ petition seeking for a writ of mandamus for declaration and direction to the respondents to refund Rs.1,00,800/- which was realized by encashing the BG. 5. At the preliminary stage itself the respondents through the Commissioner of Excise have filed counter affidavit. The pendency of the appeal and encashment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the hearing of appeal more than three times. These provisions appear to have been ignored. The adage that delay denies justice is equally applicable to the quasi-judicial proceedings. Therefore, without further adding anything, we deem it proper to direct the first respondent to dispose of the petitioner's appeal filed in July 1978 against the order of the third respondent dated 31.01.1978 within a period of two weeks from the date of receipt of a copy of this order. 8. While directing expeditious disposal of the appeal, we cannot ignore the realities. Statedly, the petitioner's Counsel passed awa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt 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) considered this aspect and observed as under. The learned Assistant Solicitor General for India drew our attention to the Judgment of a Division Bench of Bombay High Court in UNION OF INDIA v. DABHOL POWER Co. (2006 (199) ELT 782 (Bom)) wherein the Court permitted encashment of Bank Guarantees by way of interim relief to protect the interests of the Revenue. However, a reading of the Judgment of the Bombay High Court would show that it turned upon the peculiar facts of the case and did not lay down any principle or ratio of binding effect. We are not inclined to accept the argument of the lea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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