JUDGMENT 1. The writ petitions in W.P.Nos.1320, 1509, 1550, 1573, 1841, 1876, 1732, 1734, 1736, 2135, 2430, 2432, 2434, 2436 and 2640 of 2013 are filed challenging the Circular No.967/01/2013-CX, dated 1.1.2013 issued by the Central Board of Excise and Customs. 2. The writ petitions in W.P.Nos.1562, 1890, 1782, 1783, 1938 of 2013 are filed challenging the Circular No.967/01/2013-CX, dated 1.1.2013 and the consequential recovery notices. 3. The writ petitions in W.P.Nos.1321, 1510 and 2159 of 2013 are filed challenging the recovery notices issued pending disposal of the stay applications pending before the Commissioner of Customs (Appeals). 4. The writ petitions in W.P.Nos.1508, 1530, 1594, 1731, 1733, 1842, 2134, 2431, 2433, 2435 and 2437 of 2013 are filed challenging the recovery notices issued pending disposal of the stay applications pending before the Commissioner of Central Excise (Appeals). 5. The writ petitions in W.P.Nos.1549, 1592, 1877 of 2013 are filed challenging the recovery notices issued pending disposal of the stay applications pending before the Customs, Excise and Service Tax Appellate Tribunal (for brevity, "the CESTAT"). 6. The writ petition in W.P.Nos.1735 of 2013 is filed challenging the recovery notice issued pending disposal of the stay applications pending before the Commissioner of Central Excise (Appeals) and the CESTAT. 7. All these writ petitions are filed either challenging the Circular No.967/01/2013-CX, dated 1.1.2013 issued by the Central Board of Excise and Customs or the tax/penalty recovery notices issued on the basis of the said circular. The circular prescribes certain parameters and directions regarding the manner in which recovery of duty, penalty, etc. in pending proceedings or where no appeal is filed against final order on adjudication in different fora. 8. The Circular dated 1.1.2013, which is the issue for consideration, reads as under: "Circular No.967/01/2013-CX F.No.208/36/2012-CX.6 Government of India Ministry of Finance Department of Revenue Central Board of Excise and Customs, New Delhi, New Delhi, the Dated 1st January, 2013 To, (i) The Chief Commissioner of Central Excise (All), (ii) The Chief Commissioner of Central Excise & Customs (All) (iii)The Chief Commissioner of Customs (All), (iv) Directors General (All) Madam/Sir, Subject: Recovery of confirmed demand during pendency of stay application regarding. I am directed to bring your attention to the following circulars issued from time to time on the above issue and to state that it has been decided to rescind these circulars with immediate effect. I am directed to bring your attention to the following circulars issued from time to time on the above issue and to state that it has been decided to rescind these circulars with immediate effect. Sl.No. Date Circular No. and File number of CX-6 1 18.11.88 80/88 and 208/31/88 2 2.3.90 7/90 and 208/107/89 3 21.12.90 23/90 and 209/107/89 4 12.11.92 16/92 and 208/59/92 5 3.8.94 47/47/94 and 208/33/94 6 2.6.98 396/29/98 and 201/04/98 7 25.2.2004 788/21/2004 and 208/41/2003 2) Henceforth, recovery proceedings shall be initiated against a confirmed demand in terms of the following order: Sl. No. Appellate Situation Directions regarding recovery Authority 1. NIL No appeal filed against a Recovery to be initiated after confirmatory order in original expiry of statutory period of 60 against which appeal lies days for filing appeal. with Commissioner (Appeals). 2. Commissioner Appeal filed without stay Recovery to be initiated after (Appeals) application against a such an appeal has been filed, confirmatory order in original. without waiting for the statutory 60 days period to be exhausted. 3. Commissioner Appeal filed with a stay Recovery to be initiated 30 days (Appeals) application against an order in after the filing of appeal, if no original. stay is granted or after the disposal of stay petition in accordance with the conditions of stay, if any specified, whichever is earlier. 4. NIL No appeal filed against an Recovery to be initiated after Order in Original issued by the expiry of statutory period of 90 Commissioner. days for filing appeal from the date of communication of order. 5. CESTAT Appeal filed without stay Recovery to be initiated on filing application against an Order in of such an appeal, without Original issued by the waiting for the statutory 90 days Commissioner. period to be exhausted. 6. CESTAT Appeal filed with a stay Recovery to be initiated 30 days application against an Order in after the filing of appeal, if no Original issued by the stay is granted or after the Commissioner. disposal of stay petition in accordance with the conditions of stay, if any, whichever is earlier. 7. NIL No appeal filed against an Recovery to be initiated after Order in Appeal issued by a expiry of statutory period of 90 Commissioner (Appeals) days for filing appeal from the confirming the demand for the date of communication of order. first time. 8. 7. NIL No appeal filed against an Recovery to be initiated after Order in Appeal issued by a expiry of statutory period of 90 Commissioner (Appeals) days for filing appeal from the confirming the demand for the date of communication of order. first time. 8. CESTAT Appeal filed without stay Recovery to be initiated on filing application against an Order in of such an appeal in the Appeal confirming the demand CESTAT, without waiting for the for the first time. statutory 90 days period to be exhausted. 9. CESTAT Appeal filed with a stay Recovery to be initiated 30 days application against an Order in after the filing of appeal, if no Appeal confirming the demand stay is granted or after the for the first time. disposal of stay petition in accordance with the conditions of stay, if any, whichever is earlier. 10. CESTAT All cases where Commissioner Recovery to be initiated (Appeals) confirms demand in immediately on the issue of the Order in original. Order in Appeal. 11. High Court or Tribunal or High Court confirms Recovery to be initiated Supreme Court the demand. immediately on the issue of order by the Tribunal or the High Court, if no stay is in operation. 3) It may be noted that a confirmed demand remains an order in operation till it is stayed. Mere preferment of appeal itself does not operate as a stay. Hon’ble Supreme Court in case of Collector of Customs, Bombay Vs Krishna Sales (P) Ltd [ 1994 (73) E.L.T 519 (S.C)] has observed that “As is well known, mere filing of an Appeal does not operate as a stay or suspension of the Order appealed against”. Accordingly, the above directions are hereby issued for initiating recovery of the confirmed demands. 4) Instructions in CBEC’s Excise Manual of Supplementary instructions on the above subject or any other circular, instruction or letter contrary to this circular stand amended accordingly." 9. The present circular/instruction under challenge is a sequel to many circulars/instructions that have been issued from time to time during the past two decades on the vexed issue as to how the Revenue should proceed to recover tax or duty, as the case may be, pending appeal before the appellate forum. All earlier circulars/instructions have been rescinded or amended. 10. The present circular/instruction under challenge is a sequel to many circulars/instructions that have been issued from time to time during the past two decades on the vexed issue as to how the Revenue should proceed to recover tax or duty, as the case may be, pending appeal before the appellate forum. All earlier circulars/instructions have been rescinded or amended. 10. To understand the scope and ambit of the present circular/instruction, it will be relevant to refer to the earlier circulars/instructions that were issued: (a) Circular No.80/88-CX.6, dated 18.11.1988 "Circular No.80/88-CX.6, dated 18.11.1988 [From F. No. 208/31/88-CX.6] Government of India Ministry of Finance (Department of Revenue) New Delhi Subject : Recovery of dues during pendency of stay petition / application. I am directed to say that cases have been brought to the notice of the Board where some High Courts as well as the CEGAT have, inter alia, observed that it was not fair on the part of Central Excise Department to take recourse to coercive measures for recovery of Govt. dues during the pendency of stay petition / application of assessees. In the light of those observances some Collectors have raised doubts as to whether Board's Instructions F. No. 208/3/86-CX.6, dated 26-8-1986 needed any revision. 2. The matter has been examined by the Board in consultation with the Law Ministry. The Law Ministry have, inter alia, opined that the Department is within its right to proceed with the recovery proceedings after waiting for decision on the stay application for a reasonable period, which would depend on the facts and circumstance of a particular case. The observations made by some High Courts and the CEGAT would not change the legal position that mere pendency of a stay application cannot be a legal bar to proceed with recovery proceedings, in the absence of a specific order against the same. (A copy of opinion given by Ministry of Law is enclosed).(Not Printed). 3. The Board has accepted the Law Ministry's advice. In view of this there is no need to review Board's Instructions dated 26-8-1986 referred to above. 4. This may be brought to the notice of the field formations. (This disposes of Collector of Central Excise, Bombay's D.O. No. V (Ch. 24) 17/HLC/1988, dated April, 88 and Collector of Central Excise, Calcutta-II's letter F. No. C. No. IV (16) 30-CE/PRO/WB/80/, dt. 4. This may be brought to the notice of the field formations. (This disposes of Collector of Central Excise, Bombay's D.O. No. V (Ch. 24) 17/HLC/1988, dated April, 88 and Collector of Central Excise, Calcutta-II's letter F. No. C. No. IV (16) 30-CE/PRO/WB/80/, dt. 17-6-1988)." (b) Circular No.7/90-CX.6, dated 2.3.1990 "Circular No.7/90-CX.6, dated 2.3.1990 [From F.No.208/107/89-CX.6] Government of India Central Board of Excise & Customs New Delhi Subject : Central Excise - Recovery of dues during pendency of stay petition/application -Regarding Reference instructions issued by the Ministry vide F. No. 208/31/88-CX.6, dated 18th November 1988 (Circular No. 80/88-CX.6) on the subject mentioned above. Suggestions for enhancing the waiting period from the present 3 months as laid down under the above instructions to 5 months before initiating coercive measures for recovery of Central Excise duties have been received from the trade. 2. The Board has carefully examined the suggestions and has not accepted the same. However the Board felt that it was hardly fair and just to proceed with the recovery proceedings while application for stay of the impugned order or for waiver of the condition of pre-deposit was pending before the Appellate Authorities. The Board, therefore, in partial modification of its letter dated 18th November, 1988, has decided to accept the ratio of the judgments delivered by the Bombay High Court in Writ Petitions No.3919/87, 422/88 and 518/88. Copies of the judgments are enclosed for circulation and guidance of the field formations. Collectors (Appeals) are separately being directed to dispose of stay applications expeditiously." (c) Circular No.23/90-CX.6, dated 21.12.1990 "Circular No.23/90-CX.6, dated 21.12.1990 Government of India Ministry of Finance (Department of Revenue) Central Board of Excise and Customs, New Delhi 1. *** 2. *** 3. ....... It was, therefore, decided that assessee should not be granted time beyond 3 months before resorting to coercive measures to recover dues arising out of orders passed by original adjudicating authorities as well as the appellate authorities. *** 2. *** 3. ....... It was, therefore, decided that assessee should not be granted time beyond 3 months before resorting to coercive measures to recover dues arising out of orders passed by original adjudicating authorities as well as the appellate authorities. However, if a stay application of an assessee is rejected by an appellate authority even before the lapse of the time limit of three months, recovery proceedings should be initiated immediately." (d) Circular No. 16/92-CX.6, dated 12-11-1992 "Recovery of Duty demand - Whether coercive measures to recover duty demand to be taken Circular No. 16/92-CX.6, dated 12-11-1992 [From F. No. 208/59/92-CX.6] Government of India Ministry of Finance (Department of Revenue) Central Board of Excise & Customs, New Delhi Subject : Central Excise - Whether coercive measures to recover duty demanded as a result of adjudication till such time as the appeal filed by the appellant has been disposed of by the Collector (Appeals) be taken - Regarding. During the course of discussions in the National Workshop on Customs organised by the Confederation of Indian Industries on 2-9-1992, a point was raised that the Departmental officers should not take coercive measures to recover the duty demanded as a result of adjudication till such time as the appeal filed by the appellant has been disposed of by the Collector (Appeals). 2. On the question of recovery of dues during pendency of stay petition/application, the matter was examined by the Board in the recent past and necessary instructions vide Cir.F.No.208/107/90-CX.6, dated 21-12-1990 were issued in this regard. According to these instructions, the Central Excise Officers are to allow a period of three months from the date of decision for payment of the dues adjudged before resorting to coercive measures to recover such dues. However if a stay application of the assessee is rejected by the Appellate Authority even before the lapse of the time of three months, recovery proceedings should be initiated immediately. While coming to the said period of three months it was expected that the assessee should be in a position to file appeal within one month and the Appellate Authority to dispose of the same within another 2 months. 3. The issue has further been examined by the Board. While coming to the said period of three months it was expected that the assessee should be in a position to file appeal within one month and the Appellate Authority to dispose of the same within another 2 months. 3. The issue has further been examined by the Board. The Board is of the view that it is not desirable to revise the above-mentioned instructions in the matter and provide for a blanket stay order for not taking coercive measures as pleaded by the Confederation of Indian Industries. If the assessee is diligent, as the things stand today, it would be possible to get orders on stay application well within a period of 3 months. In case of any individual hardships the case could be decided on a case to case basis. 4. In view of facts stated above, the Board desires that you may dispose of stay applications within a period of 2 months from the date of its receipt, in case for cogent reasons, you are not in a position to dispose of the main appeal within the same time frame." (e) Circular No. 47/47/94-CX.6, dated 3.8.1994 "Circular No. 47/47/94-CX.6, dated 3.8.1994 [From F. No. 208/33/94-CX.6] Government of India Ministry of Finance (Department of Revenue) Central Board of Excise & Customs, New Delhi Subject : Central Excise - Whether coercive measures to recover duty demanded as a result of adjudication till such time as the appeal filed by the appellant has been disposed of by the Collector (Appeals) be taken - Regarding. I am directed to refer Board’s Circular No. 16/92-CX.6 (F.No.208/59/92-CX.6) dated 12.11.1992 wherein instructions were issued to the effect that Central Excise Officers were to allow a period of three months from the date of decision for payment of dues adjudged before resorting to coercive measures to recover such dues. 2. A reference has been received from the office of the Comptroller and Auditor General of India suggesting that in 6th & 7th lines of para 2 of Board’s Circular No.16/92-CX.6) (F.No.208/59/92-CX.6) dated 12.11.1992 which reads as “three months from the date of decision ‘should be read as’ three months from the date of communication of the order.” 3. Above proposal has been accepted by the Board. 4. Above proposal has been accepted by the Board. 4. Field formations and trade interests may be informed accordingly." (f) Circular No. 396/29/98-CX, dated 2.6.1998 "Circular No. 396/29/98-CX, dated 2.6.1998 [From F.No.201/04/98-CX.6] Government of India Ministry of Finance, Department of Revenue Central Board of Excise & Customs, New Delhi Subject: Central Excise - Whether coercive measures to recover duty demanded as a result of adjudication till such time as the appeal/ stay applications filed by the appellant has been disposed of by Commissioner (Appeals) be taken- Regarding. On the question of recovery of dues during pendency of stay application before the Commissioner (Appeal), the matter was examined by the Board and necessary instructions were issued vide Circular No.23/90-CX.6 dated 12.12.1990 issued from F.No.209/ 107/89-CX.6 and Circular No.16/92-CX.6 dated 12.11.1992 issued from F.No.208/59/92-CX.6. According to these instructions, Central Excise Officers were to allow a period of three months from the date of decision for payment of dues adjudicated before resorting to coercive measures to recover such dues. However, if the stay application is rejected by the Commissioner (Appeal) even before the lapse of time of three months, recovery proceedings should be initiated immediately. The Commissioner (Appeals) were also directed to dispose of stay application within the period of two months in case the Commissioner (Appeal) was not in a position to dispose of the main appeal within the same time-frame. 2. Recently, the Bombay High Court has ordered that Commissioner (Appeals) may be directed to dispose of stay application within the specified time limit and during the pendency of stay application no coercive action should be taken to realise the arrears of revenue. 3. Keeping the aforesaid in view, the Board has decided that no coercive action should be taken to realise the dues till the disposal of the stay application by the Commissioner (Appeals) and the Commissioner (Appeals) must dispose of the stay application within one month of its filing." (g) Circular No.788/21/2004-CX, Dated 25.05.2004 "Circular No.788/21/2004-CX, Dated 25.05.2004 F.No.208/41/2003-CX.6 Government of India Ministry of Finance, Department of Revenue Central Board of Excise & Customs, New Delhi Subject: Central Excise-Coercive action for the recovery of arrears when the appeal/stay application is pending in Tribunal - Regarding. I am directed to refer to Board’s Circular No. 396/29/1998-CX dated 2nd June, 1998 [1998 (100) E.L.T. T15] on the subject of taking recourse to coercive measures to recover duty demanded as a result of adjudication till such time as the stay applications have been disposed of by Commissioner (Appeals). Consequently, references have been received regarding the course of action to be taken when the stay application against the Order-in-Original passed by Commissioner is pending with the Tribunal. 2. The matter has been examined. The Board has taken the following decisions: a) *** b) *** c) In respect of stay applications pending against the Orders-In Original of the Commissioners before the CESTAT a view similar to Board's Circular No.396/29/98-CX dated 2.6.1998 should be taken. The two provisos to Section 35C(2A) of the Central excise Act, 1944 read as follows : “Provided that where an order of stay is made in any proceeding relating to an appeal filed under sub-section (1) of section 35B,the Appellate Tribunal shall dispose of the appeal within a period of one hundred and eighty days from the date of such order: Provided further that if such appeal is not disposed of within the period specified in the first proviso, the stay order shall, on the expiry of that period, stand vacated.” In view of the above stated legal position, the field officers should refrain from taking coercive action till the period of six months of filing a stay petition before the CESTAT, or till the disposal of the stay petition, whichever is earlier. The instructions in this clause relate to only stay application filed with first stage appeals not to those with further appeals i.e. only in respect of stay applications filed with appeals filed against the Orders-In Original of the Commissioners." (emphasis supplied) 11. From a reading of the above circulars, it is clear that the Ministry of Finance has been considering the issue of limiting the period required for initiating recovery of the duty, based on adjudication orders pending the appeals or pending applications for waiver/stay. As is evident from the circulars mentioned above, the Department of Revenue has specified different periods as relevant to initiate action for recovery. It is in this background that the present circular came to be issued on 1.1.2013 in a consolidated form rescinding the earlier circulars. As is evident from the circulars mentioned above, the Department of Revenue has specified different periods as relevant to initiate action for recovery. It is in this background that the present circular came to be issued on 1.1.2013 in a consolidated form rescinding the earlier circulars. In these cases, we are concerned only with appeals that are filed along with stay/waiver applications. All other cases where no appeal is filed or where no application for stay/waiver is filed, there is no cause for quarrel. The Officers are at liberty to proceed for recovery as per law. 12. The Ministry of Finance, Department of Revenue, being conscious of the fact that certain period of time has to be given to the assessee to obtain interim orders from the appellate forum, directed the authorities that coercive action should not be taken as a matter of course. In paragraph (9) of this order, all the earlier circulars have been extracted and the relevant portions have been highlighted. i. In Circular No.88/88-CX.6, dated 18.11.1988, based on the Law Ministry's opinion, the Board issued a circular that authorities can wait for a reasonable period of time pending stay application and that should be based on the facts and circumstances of the particular case. ii. In Circular No.7/90-CX.6, dated 2.3.1990, the Board opined that it was not fair and just to proceed with the recovery while application for stay of the impugned order or for waiver of the condition of pre-deposit was pending before the Appellate Authorities. iii. In Circular No.23/90-CX.6, dated 21.12.1990, the Board took the view that the assessee should not be granted time beyond 3 months before resorting to coercive measures to recover dues arising out of orders passed by Original Authorities as well as the Appellate Authorities. iv. In Circular No.16/92-CX.6, dated 12.11.1992, a period of three months was granted from the date of decision for payment of the dues adjudged before resorting to coercive measures, reiterating what is stated in Circular No.23/90-CX.6, dated 21.12.1990. v. In Circular No.47/47/94-CX.6, dated 3.8.1994, the three months period was reckoned from the date of communication of the order. vi. iv. In Circular No.16/92-CX.6, dated 12.11.1992, a period of three months was granted from the date of decision for payment of the dues adjudged before resorting to coercive measures, reiterating what is stated in Circular No.23/90-CX.6, dated 21.12.1990. v. In Circular No.47/47/94-CX.6, dated 3.8.1994, the three months period was reckoned from the date of communication of the order. vi. In Circular No.396/29/98-CX, dated 2.6.1998, the Board was of the view that no coercive action should be taken for realization of dues until disposal of the stay application by the Commissioner (Appeals) and a direction was issued to the Commissioner (Appeals) to dispose of the stay application within one month of its filing. vii. In Circular No.788/21/2004-CX, dated 25.5.2004, the Board reiterating its stand in the earlier Circular No.396/29/98-CX, dated 2.6.1998. It is, therefore, clear that the Board was of the view that, as a general principle, recovery should be resorted to in cases where no appeal is filed or where there is a failure on the part of the assessee to obtain interim orders. If appeal and stay/waiver applications are filed, a reasonable time should be given. 13. In the light of the above, this Court has to now consider the provision under which the impugned circulars/instructions are issued by the Central Board of Excise and Customs and its effect on the assessee. Section 37-B of the Central Excise Act, 1944, which provides for issuance of circulars reads as under: Section 37-B. Instructions to Central Excise Officers. 13. In the light of the above, this Court has to now consider the provision under which the impugned circulars/instructions are issued by the Central Board of Excise and Customs and its effect on the assessee. Section 37-B of the Central Excise Act, 1944, which provides for issuance of circulars reads as under: Section 37-B. Instructions to Central Excise Officers. -The Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963), may, if it considers it necessary or expedient so to do for the purpose of uniformity in the classification of excisable goods or with respect to levy of duties of excise on such goods, issue such orders, instructions and directions to the Central Excise Officers as it may deem fit, and such officers and all other persons employed in the execution of this Act shall observe and follow such orders, instructions and directions of the said Board : Provided that no such orders, instructions or directions shall be issued: (a) so as to require any Central Excise Officer to make a particular assessment or to dispose of a particular case in a particular manner; or (b) so as to interfere with the discretion of the Commissioner of Central Excise (Appeals) in the exercise of his appellate functions." Similarly, under the Customs Act, 1962, Section 151-A reads as under: "Section 151-A. Instructions to officers of customs. -The Board may, if it considers it necessary or expedient so to do for the purpose of uniformity in the classification of goods or with respect to the levy of duty thereon, or for the implementation of any other provisions of this Act or of any other law for the time being in force, insofar as they relate to any prohibition, restriction or procedure for import or export of goods issue such orders, instructions and directions to officers of customs as it may deem fit and such officers of customs and all other persons employed in the execution of this Act shall observe and follow such orders, instructions and directions of the Board: Provided that no such orders, instructions or directions shall be issued- (a) so as to require any such officer of customs to make a particular assessment or to dispose of a particular case in a particular manner; or (b) so as to interfere with the discretion of the Commissioner of Customs (Appeals) in the exercise of his appellate functions." 14. On going through the said provisions, it is evident that it relates to circulars issued for the purpose of maintaining uniformity in classification both in respect of excisable goods and also the goods imported under the Customs Act, 1962. It also relates to levy of duty on such goods. Besides it contemplates issuance of circulars in respect of import or export of goods that are prohibited or restricted. The provisos to the above said sections clearly mandate that such circulars issued by the Board shall not impinge on the powers of the Assessing Officer or interfere with the discretion of the Commissioner of Central Excise (Appeals) or Commissioner of Customs (Appeals) in exercise of their appellate functions. Therefore, circulars have certain limitations. We are dealing with circulars/instructions on recovery of duty/tax due. The provision of Section 37-B and Section 151-A of the Central Excise Act, 1944 and the Customs Act, 1962 respectively, which are referred to above, does not deal with such contingency (i.e.) issues relating to recovery of duty/penalty due on orders of adjudication. 15. If the above said provisions do not stricto sensu apply to the circulars/instructions under challenge, we may have to fall back upon Rule 31 of the Central Excise Rules, 2002, which provides for issuing supplementary instructions. Rule 31 of the Central Excise Rules, 2002 reads as under: "Rule 31. 15. If the above said provisions do not stricto sensu apply to the circulars/instructions under challenge, we may have to fall back upon Rule 31 of the Central Excise Rules, 2002, which provides for issuing supplementary instructions. Rule 31 of the Central Excise Rules, 2002 reads as under: "Rule 31. Power to issue supplementary instructions. -(1) The Board or the Chief Commissioner or the Commissioner, may issue written instructions providing for any incidental or supplemental matters, consistent with the provisions of the Act and these rules." 16. It is, therefore, clear that in exercise of such general power of superintendence and in order to ensure the effective functioning of the Departments of Excise and Customs, such circulars have been issued from time to time guiding the officers as to how they should proceed in matters relating to recovery of tax, duties and other amounts that are payable by the assessees or the importers, as the case may be, who have suffered adverse orders of adjudication before original authority or appellate authority. The present circular can therefore be at best termed as instructions by the Board. At best it is persuasive in character. Consequently, it is directory in nature and not mandatory. 17. Since the present issue which has been narrowed down relates to recovery proceedings pending appeal, the relevant provisions that relate to appeal and interlocutory orders have to be considered. Some of the provisions of the Central Excise Act, 1944, which are relevant for disposal of these writ petitions are as follows: "Section 35. Appeals to Commissioner (Appeals).- (1) Any person aggrieved by any decision or order passed under this Act by a Central Excise Officer, lower in rank than a Commissioner of Central Excise, may appeal to the Commissioner of Central Excise (Appeals) hereafter in this Chapter referred to as the Commissioner (Appeals) within sixty days from the date of the communication to him of such decision or order: Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days. (1A) The Commissioner (Appeals) may, if sufficient cause is shown at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing : Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal. (2) Every appeal under this section shall be in the prescribed form and shall be verified in the prescribed manner." "Section 35-C. Orders of Appellate Tribunal.” (1) The Appellate Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or annulling the decision or order appealed against or may refer the case back to the authority which passed such decision or order with such directions as the Appellate Tribunal may think fit, for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary. (1-A) The Appellate Tribunal may, if sufficient cause is shown, at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing: Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal. (2) The Appellate Tribunal may, at any time within six months from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1) and shall make such amendments if the mistake is brought to its notice by the Commissioner of Central Excise or the other party to the appeal: Provided that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the other party, shall not be made under this sub-section, unless the Appellate Tribunal has given notice to him of its intention to do so and has allowed him a reasonable opportunity of being heard. (2A) The Appellate Tribunal shall, where it is possible to do so, hear and decide every appeal within a period of three years from the date on which such appeal is filed: Provided that where an order of stay is made in any proceeding relating to an appeal filed under sub-section (1) of section 35B, the Appellate Tribunal shall dispose of the appeal within a period of one hundred and eighty days from the date of such order: Provided further that if such appeal is not disposed of within the period specified in the first proviso, the stay order shall, on the expiry of that period, stand vacated. (3) The Appellate Tribunal shall send a copy of every order passed under this section to the Commissioner of Central Excise and the other party to the appeal. (4) Save as provided in the National Tax Tribunal Act, 2005, orders passed by the Appellate Tribunal on appeal shall be final." "Section 35-F. Deposit, pending appeal of duty demanded or penalty levied.” Where in any appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of Central Excise authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied: Provided that where in any particular case, the Commissioner (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the Commissioner (Appeals) or, as the case may be, the Appellate Tribunal, may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue. Provided further that where an application is filed before the Commissioner (Appeals) for dispensing with the deposit of duty demanded or penalty levied under the first proviso, the Commissioner (Appeals) shall, where it is possible to do so, decide such application within thirty days from the date of its filing. Explanation. Provided further that where an application is filed before the Commissioner (Appeals) for dispensing with the deposit of duty demanded or penalty levied under the first proviso, the Commissioner (Appeals) shall, where it is possible to do so, decide such application within thirty days from the date of its filing. Explanation. - For the purposes of this section “duty demanded” shall include,- (i) amount determined under section 11-D; (ii) amount of erroneous CENVAT credit taken; (iii) amount payable under rule 57-CC of Central Excise Rules, 1944; (iv) amount payable under rule 6 of CENVAT Credit Rules, 2001 or CENVAT Credit Rules, 2002 or CENVAT Credit Rules, 2004; (v) interest payable under the provisions of this Act or the rules made thereunder." 18. Under the Customs Act, the analogous provisions are Section 128 (Appeals to the Commissioner (Appeals)) and Section 129-A (Appeals to the Appellate Tribunal); and Section 129-E provides for waiver of pre-deposit of duty, penalty and interest. 19. In no uncertain terms, Section 35-F of the Central Excise Act and Section 129-E of the Customs Act mandates that a person desirous of appealing against any decision or order pending the appeal shall deposit with the adjudicating authority the duty demanded or penalty levied. However, the proviso to Section 35-F of the Central Excise Act empowers the Commissioner (Appeals) or the Appellate Tribunal, as the case may be, to consider whether such deposit of duty or penalty would cause undue hardship to the assessee and dispense with such deposit subject to such conditions that the Appellate Authority may deem fit to impose so as to safeguard the interest of the Revenue. The proviso to Section 35-F of the Central Excise Act and proviso to Section 129-E of the Customs Act, 1962 apparently is balanced in its approach. While considering the undue hardship of the person who files the appeal before the Commissioner (Appeals) or the Appellate Tribunal, as the case may be, it may impose such conditions while dispensing with the pre-deposit pending appeal after taking into consideration the interest of the Revenue. The Central Excise Act as well as the Customs Act provide for a check and balance between the claim of the assessee and the interest of the Revenue. This should not be lost sight of while considering the present issue and the scope of the circular/instruction. 20. The Central Excise Act as well as the Customs Act provide for a check and balance between the claim of the assessee and the interest of the Revenue. This should not be lost sight of while considering the present issue and the scope of the circular/instruction. 20. If the circular attempts to defeat the object of Section 35-F of the Central Excise Act and Section 129-E of the Customs Act in whatever manner, it cannot be justified, as it would amount to overreaching the provisions of the respective Acts. Both in the Central Excise Act and the Customs Act time limit has been specified for filing appeal and if stay/waiver application is filed, a duty is cast upon the Commissioner (Appeals) or the Appellate Tribunal to dispose of the same at the earliest, preferably by a time frame. It is not mandatory, as the words used are ‘where it is possible to do so’. Therefore, the statute provides a free play of joints to the appellate authority. No fetters can be imposed on quasi-judicial authority, as Section 37-B of the Central Excise Act and Section 151-A of the Customs Act provide that no interference is called for in the case of quasi-judicial appellate authority. The instruction in the present case can be no better when compared to the circulars/notification issued under Section 37-B of the Central Excise Act or Section 151-A of the Customs Act. 21. The Supreme Court and the High Courts have, while interpreting the scope of interim orders passed by the Appellate Authority, held that not only the undue hardship is relevant, but prima facie case also can be considered. It goes to show that the filing of an appeal and the application under Section 35-F of the Central Excise Act or Section 129-E of the Customs Act is not an empty formality. A substantial right granted by the statute cannot be casually set at naught by the circular/instruction. It has to be consistent with the statutory right of the assessees. 22. As could be seen from the series of circulars, which have been referred to above, the Revenue has been issuing instructions to the field formations to initiate recovery action specifying certain time limit. As is evident from a reading of various circulars, for many years three months time was allowed and direction was issued to take steps thereafter. 22. As could be seen from the series of circulars, which have been referred to above, the Revenue has been issuing instructions to the field formations to initiate recovery action specifying certain time limit. As is evident from a reading of various circulars, for many years three months time was allowed and direction was issued to take steps thereafter. Insofar as the present circular is concerned, the area of controversy appears to be very narrow. None of the petitioners are pleading for any indulgence insofar as S.Nos.1, 2, 4, 5, 7 and 8 are concerned and insofar as S.No.11 is concerned, it is stated that it is subject to orders of Court. The grievance appears to be that even if stay/waiver applications are filed before the Commissioner (Appeals) or against the order of the Commissioner (Appeals), Commissioner before the Tribunal, if for some reason the appellate authority or the Tribunal does not hear the stay/waiver petitions at an early date, even though there is no fault on the part of the assessee, still then the department will initiate recovery proceedings within 30 days after filing of the appeal, if no stay/waiver is granted. This plea if it is based on a bona fide claim pending appeal, justifies the petitioners plea that the circular is issued in terrorem. 23. The petitioners are aggrieved by a portion of the instruction in Serial Nos.3, 6, 9 and 10. The words "if no stay is granted" and "whichever is earlier" used in the said clauses give the department a right to proceed and take coercive steps after the time limit of 30 days. If the stay/waiver application is not taken up for disposal by the Appellate Authority for one reason or the other, still then the authority will proceed for recovery quoting the above circular/instruction. This apparently appears to be arbitrary as is evident from the situation that prevails before the appellate forum. 24. If the stay/waiver application is not taken up for disposal by the Appellate Authority for one reason or the other, still then the authority will proceed for recovery quoting the above circular/instruction. This apparently appears to be arbitrary as is evident from the situation that prevails before the appellate forum. 24. The learned counsel for many of the writ petitioners brought to the notice of this Court the peculiar circumstances prevailing before the Commissioner (Appeals) -both under the Customs Act and the Central Excise Act and also before the CESTAT by referring to a letter dated 1.11.2012 addressed to the Hon'ble Finance Minister by the Indirect Taxes Bar Association which reads as follows: "Sub: Request to fill up the vacancies in the posts of Member (Judicial) and Member (Technical), in the Chennai Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) - Reg. We wish to bring to your kind notice that the Member (Judicial) post in the Chennai Bench of the CESTAT is vacant ever since the retirement of Smt. Jyothi Balasundaram, Hon'ble Vice President on 24.10.2011. Subsequently, the Hon'ble Member (Technical), Shri C.Satapathy has also retired on 11.7.2012. During the last one year, i.e. from November 2011, the Division Bench has functioned only for around 50 days, by way of deputing Members from other benches. You may kindly appreciate that more that 7000 appeals, more than 1500 stay petitions and more than 1000 Miscellaneous Petitions are pending before the Chennai Bench of the CESTAT. Non functioning of the bench over a continuous period of time is posing serious difficulties for the litigants. As the stay petitions are pending for a long time, the department is time and again resorting to coercive recovery and each time we have to approach the Hon'ble High Court with Writ Petitions. Further, since the stay orders already passed by the bench are expiring upon 180 days, in view of the provisions of 35C(2A) of the Central Excise Act and similar provisions in respect of Customs/ Service Tax, Miscellaneous petitions for extension of stay are also being filed in large numbers, adding to the pendency. Further, since the stay orders already passed by the bench are expiring upon 180 days, in view of the provisions of 35C(2A) of the Central Excise Act and similar provisions in respect of Customs/ Service Tax, Miscellaneous petitions for extension of stay are also being filed in large numbers, adding to the pendency. In view of the above difficulties faced by the litigants before the Chennai Bench, we the members of the Indirect Taxes Bar Association of Chennai have resolved to request your goodselves to kindly take immediate steps to fill up the vacancies in the posts of Member (Judicial) and Member (Technical) as early as possible. i. Till such time, ensure that the bench functions at least for two weeks in a month, by regularly deputing Members from other benches." The said letter clearly reveals the apathy of the petitioners and similarly placed assessees. It is evident that the non consideration of the stay/waiver applications is because of lack of members to constitute the coram for a bench in the case of Tribunal. 25. Insofar as Commissioner (Appeals) is concerned, it is clearly stated that large number of stay petitions are pending disposal. In spite of assessees request for early hearing of the stay/waiver applications the same has not been considered or decided. The inability on the part of the assessees to obtain interim orders is not on account of any delay or inaction on their part, but only due to the administrative difficulties expressed by the Office of the Commissioner (Appeals) and also due to the non functioning of the Tribunal with its full complement of members for a substantial period of time. 26. Placing before this Court the peculiar situation as above, the learned counsel for the petitioners plead that in the absence of early disposal of the stay/waiver applications by the Commissioner (Appeals) even as per the mandate of the provisions of the Customs Act and the Central Excise Act and also due to the non availability of members of the Tribunal which is causing a huge backlog, the petitioners/assessees should not be made to suffer by way of recovery proceedings based on the impugned circular/ instruction. 27. 27. As was stated earlier, even if it is a circular issued under Section 37-B of the Central Excise Act, 1944 or Section 151-A of the Customs Act, 1962, Courts have repeatedly held that such circulars are more in the nature of guidance to the field formations and cannot bind the Court or the assessee. The said view is fortified by the decision of the Supreme Court in Commissioner of Customs, Calcutta v. Indian Oil Corporation Ltd., 2004 (165) ELT 257 (SC). That apart, the Supreme Court in Varsha Plastics Pvt. Ltd. v. Union of India, 2009 (235) ELT 193 (SC) has held as under: "29. Section 151-A of the Act confers upon the Board the power to issue orders, instructions and directions to the authorities for proper administration of the provisions of the Act. It also provides that all such authorities and all other persons employed in the execution of the provisions of the Act shall observe and follow such orders, instructions and directions of the Board. The proviso appended thereto states that no such orders, instructions or directions shall be issued: (a) so as to require all such officers of Customs to make a particular assessment or to dispose of a particular case in a particular manner or, (b) so as to interfere with the discretion of the Collector of Customs (Appeals) in exercise of his appellate functions. The proviso to Section 151-A makes it abundantly clear that the Customs Officer who has to make a particular assessment is not bound by such orders or instructions or directions of the Board. An Assessing Authority under the Act being a quasi-judicial authority has to act independently in exercise of his quasi-judicial powers and functions. Section 151-A does not in any manner control or affect the independent exercise of quasi-judicial functions by the Assessing Authority." 28. In Commissioner of Central Excise, Bolpur v. Ratan Melting & Wire Industries, 2008 (231) ELT 22 (SC), a Constitution Bench of the Supreme Court held that the circulars issued by the Board are not binding on the assessee and cannot override the decision of the Court. 29. The Supreme Court in UCO Bank v. Commissioner of Income Tax, West Bengal, 1999 (111) ELT 673 (SC) has held that circulars are meant to ensure proper administration of the statute, in the following words: "15. 29. The Supreme Court in UCO Bank v. Commissioner of Income Tax, West Bengal, 1999 (111) ELT 673 (SC) has held that circulars are meant to ensure proper administration of the statute, in the following words: "15. The said circulars under Section 119 of the Income Tax Act were not placed before the Court in the correct perspective because the latter circular continuing certain benefits to the assessees was overlooked and the withdrawn circular was looked upon as in conflict with law. Such circulars, however, are not meant for contradicting or nullifying any provision of the statute. They are meant for ensuring proper administration of the statute, they are designed to mitigate the rigours of the application of a particular provision of the statute in certain situations by applying a beneficial interpretation to the provision in question so as to benefit the assessee and make the application of the fiscal provision, in the present case, in consonance with the concept of income and in particular, notional income as also the treatment of such notional income under accounting practice." (emphasis supplied) The above said case pertains to a circular issued under the provisions of the Income Tax Act which is analogous to Section 37-B of the Central Excise Act, 1944 and Section 151-A of the Customs Act, 1962. 30. On going through these provisions, it is clear that the present circular/instruction, which though not relatable to Section 37-B of the Central Excise Act, 1944 or Section 151-A of the Customs Act, 1962 can at best be taken as an instruction to the field formations to initiate proceedings for recovery of revenue dues which the assessee or the importer has failed to pay having suffered an order passed by the adjudicating authority and is pending in appeal before the Commissioner (Appeals) or the CESTAT, as the case may be. It is not mandatory to effect recovery immediately after 30 days as mentioned, as such an intention is not there in the statute. The circular/instruction directs the recovering authority to initiate proceedings for recovery. In the event of stay/waiver application pending and on intimation, the authority should refrain from proceeding further in the recovery proceedings pending an order in the application for stay/waiver. The circular/instruction has no statutory backing for initiating recovery proceedings and hence it is to be read as directory and not mandatory. 31. In the event of stay/waiver application pending and on intimation, the authority should refrain from proceeding further in the recovery proceedings pending an order in the application for stay/waiver. The circular/instruction has no statutory backing for initiating recovery proceedings and hence it is to be read as directory and not mandatory. 31. There is no doubt that for recovery of dues payable to the revenue, proceedings can be initiated thirty days after filing of the appeal or any time thereafter and the same cannot be found fault with. But the action of the department in resorting to coercive recovery proceedings at an early date without taking into consideration the pendency of the stay/waiver application before the Commissioner (Appeals) or the Tribunal would necessarily work hardship to the petitioners/assessees. The right granted under the statute cannot be whittled down by fixing a time limit in an instruction even though the Appellate Authority has not taken up the matter at the stage of waiver of pre-deposit or for stay. The right provided under a statute should not be denied only on the basis of the impugned circular/instruction. 32. As is evident from the various circulars, which have been referred to above, it is clear that the Board has been mulling over this issue as to what should be the correct time limit for initiating recovery proceedings, as the statute is silent on the issue. Different yardsticks have been used from time to time, but one common factor appears to be that the Board was conscious of the fact that after filing of the appeal, if stay/waiver applications are filed, reasonable period of time should be granted. In some cases, time limit has been fixed and in some cases it has not been specified. In the present case, the Board has clearly fixed the time limit. The question is if the stay/waiver application is not taken up by the appellate forum, can the assessee/appellant be found fault with. The Supreme Court decision in Collector of Customs, Bombay v. Krishna Sales (P) Ltd., supra, relied upon did not give a mandate for fixing a time limit for recovery. All that it stated is that mere filing of appeal is no stay of proceedings. There is no dispute on this either side. 33. The Supreme Court decision in Collector of Customs, Bombay v. Krishna Sales (P) Ltd., supra, relied upon did not give a mandate for fixing a time limit for recovery. All that it stated is that mere filing of appeal is no stay of proceedings. There is no dispute on this either side. 33. There can be no quarrel if the Commissioner (Appeals) decides the stay/waiver applications as per the proviso to Section 35-F of the Central Excise Act, 1944 or Section 129-E of the Customs Act, 1962 preferably by the time limit; or if the Tribunal decides the stay/waiver application within the time limit specified in the circular. But in the absence of proper functioning of the Tribunal due to non availability of members and when the Commissioner (Appeals) does not provide dates for hearing of the stay/waiver application within the time specified, it is not clear as to how the petitioners/ assessees can be found fault with. The Department cannot, under this circular, take away the substantial right granted under the statue to the petitioners/assessees. The difficulty expressed by the petitioners is amplified in the Apex Court decision in Commissioner of Customs and Central Excise, Ahmedabad v. Kumar Cotton Mills Private Ltd., 2005 (180) ELT 434 (SC). 34. In cases where no appeal is filed or appeal filed without stay application, there can be no dispute that recovery can be initiated forthwith. However, in cases where appeals are filed along with applications for stay/waiver and intimation of the same has been given to the department, the Officers of the respondent/department should not proceed for recovery as a matter of course, unless and until it is found that the petitioners/assessees in the case are deliberately prolonging the issue under one pretext or the other. In other words, by their own volition if the stay/waiver application has been postponed, then the department is justified in proceeding further. The balance lies is safeguarding the interest of the assessee and the revenue, and that is the role of the appellate authority in terms of Section 35-F of the Central Excise Act and Section 129-E of the Customs Act. The mandate to recover within 30 days therefore is apparently arbitrary and unfair to the assessee's rights to seek waiver or stay before a quasi-judicial forum. 35. The mandate to recover within 30 days therefore is apparently arbitrary and unfair to the assessee's rights to seek waiver or stay before a quasi-judicial forum. 35. Insofar as the Tribunal is concerned, the department has the benefit of a departmental representative being present and, therefore, there can be proper follow up of those cases. Insofar as the stay/waiver applications before the Commissioner (Appeals) are concerned, a Division Bench of the Bombay High Court in Larsen & Toubro Limited v. Union of India and others, has made suggestions to the Ministry of Finance to provide software and monitor the disposal of the stay/waiver applications. Paragraph (15) of the said decision reads as follows: "15. Counsel appearing on behalf of the Revenue submitted during the course of the hearing that the field officers of the Revenue who initiate recovery action are independent of the adjudicating or appellate forum and hence have no means of verifying the status of the applications for stay and it is hence for the assessee, when recovery action is initiated to inform the jurisdictional Commissioner of the pendency of the stay application. We do not find that this can be treated as a valid justification for penalizing an assessee whose conduct is otherwise free from blame. Modern technology has made rapid strides and in our view, it is time that the Union Ministry of Finance takes steps to ensure that proceedings before the adjudicating authorities as well as the Appellate Authorities including the Commissioner (Appeals) and the CESTAT are recorded in the electronic form. Once an appeal is filed before the Commissioner (Appeals), the filing of the appeal must be recorded through an entry made in the electronic form. Every appellant, including the assessee must indicate, when an appeal is filed, an email ID for service of summons and intimation of dates of hearing. The Commissioner (Appeals) must schedule the hearing of stay applications and provide dates for the hearing of those applications which must be published in the electronic form on the website. The order sheets or roznamas of every case must be duly uploaded on the website to enable both the officers of the Revenue and assessees to have access to the orders that have been passed and to the scheduled dates of hearing. The order sheets or roznamas of every case must be duly uploaded on the website to enable both the officers of the Revenue and assessees to have access to the orders that have been passed and to the scheduled dates of hearing. We would also commend to the Union Ministry of Finance the urgent need to introduce electronic software that would ensure that the orders and proceedings of the CESTAT are duly compiled, collated and published in the electronic form. A case information software has been adopted for the District judiciary including in the State of Maharashtra under the auspices of the National Informatics Center. Matters involving Revenue have large financial implications for the Union Government. The incorporation of electronic technology in the functioning of judicial and quasi-judicial authorities constituted under the Central Excise Act, 1944, the Customs Act, 1962 and cognate legislation would provide a measure of transparency and accountability in the functioning of the adjudicating officers, the appellate Commissioners as well as the Tribunal. But equally significant is the need to protect the interest of the Revenue which the adoption of electronic technology would also achieve. We are not unmindful of the fact that an application for stay may be kept pending for an indefinitely long period of time at the behest of an unscrupulous assessee and a willing administrative or quasi-judicial authority. This would be obviated by incorporating the requirement of disseminating and uploading the proceedings of judicial and quasi-judicial authorities under the Central Excise Act 1944 as well as the Customs Act 1962 in an electronic form. This would ensure that a measure of administrative control can be retained with a view to safeguarding the position of the Revenue as well as in ensuring fairness to the assessees. We hope and trust that this suggestion of the Court will receive serious and urgent consideration by the Union Ministry of Finance. " I am in respectful agreement with the said observations, which would go a long way in mitigating the difficulties expressed by the petitioners/ assessees. 36. We hope and trust that this suggestion of the Court will receive serious and urgent consideration by the Union Ministry of Finance. " I am in respectful agreement with the said observations, which would go a long way in mitigating the difficulties expressed by the petitioners/ assessees. 36. The Court after considering the various circulars issued from time to time and the present circular/instruction, which is more in the nature of a guidance to the department authorities insofar as the recovery is concerned, is of the firm opinion that the said circular/instruction should not be taken as a mandate to initiate recovery proceedings automatically after expiry of the period specified. If an appeal has been properly filed along with stay/waiver application and intimation of the same is given to the department, then the initiation of recovery proceedings should wait for a reasonable period depending on the date given by the appellate authority. If the assessee is able to show before the recovery authority that they have filed an application for stay/waiver, it should be diligently followed and if it is found that the assessee is protracting the issue for some reason or the other, then recovery proceedings can be initiated showing proper reasons. The time limit specified in the circular/instruction insofar as it relates to appeals filed along with stay/waiver application is concerned should be interpreted in such a manner that it should not cause hardship to the genuine assessee, who has proceeded to file appeal along with stay/waiver application. If no order is passed in the stay/waiver application by the Commissioner (Appeals) or the Tribunal for some reason not attributable to the assessee, the authorities shall refrain from initiating coercive action. The circular/instruction stands clarified as above. The assessee is also required to show to the authorities that he is diligent in prosecuting the appeal along with the stay/waiver application. 37. The circular/instruction is accordingly clarified to state that while there is a power to initiate recovery proceedings on an erring assessee, the department should refrain from taking coercive steps if due diligence is shown by the assessee in prosecuting the appeal and the stay/waiver application. 37. The circular/instruction is accordingly clarified to state that while there is a power to initiate recovery proceedings on an erring assessee, the department should refrain from taking coercive steps if due diligence is shown by the assessee in prosecuting the appeal and the stay/waiver application. In all these cases, it is shown that appeals are pending before the Commissioner (Appeals) or the Tribunal, as the case may be, and insofar as the Tribunal is concerned, it has been functioning without full complement of members and, therefore, the petitioners were not able to list their cases on board and seek interim orders. The situation is beyond the control of the writ petitioners/assessees and they were not responsible for the delay in prosecuting the matter. Insofar as the Commissioner (Appeals) is concerned, it is to be noticed and it is fairly conceded by the learned Standing Counsel for the respondents that large number of appeals and stay petitions are pending and dates have been given. Therefore, the petitioners are not at fault. In no case there is a breach alleged on the part of the petitioners herein. 38. In such situation, the Court has no hesitation to hold that the respondent/department should refrain from proceeding further in the recovery proceedings pending disposal of the stay/waiver application before the Commissioner (Appeals) or the Tribunal, as the case may be, however, with a rider that each one of the petitioners shall inform the respondent/department the stage of the pending applications for stay/waiver from time to time, preferably every month, if there is an inordinate delay. 39. The authorities are directed to take up the waiver/stay applications at an early date and dispose of the same preferably within eight weeks from the date of receipt of a copy of this order, if not already disposed of. Till the disposal of the stay/waiver applications as indicated above, the respondent/department shall not take coercive steps for recovery. In the result, all these writ petitions are disposed of in the above terms. No costs. Consequently, the connected miscellaneous petitions are closed.