THE HONOURABLE SRI JUSTICE GODA RAGHURAM AND THE HONOURABLE SRI JUSTICE RAMSH RANGANATHAN WRIT PETITION No. 24000 of 2009 Dated: 17-11-2009 Between: M/s Steer Overseas P. Ltd. Rep. By its Operations Manager Mr.Praveen Mahatma …Petitioner and The Assistant Commissioner of Customs, Kakinada (Customs) I Division, Port Area, Kakinada, East Godavari Dist. And another …Respondents. Oral order: (Per GR, J) Though the writ petition is filed challenging the order-in- Original No. 02/2009/RVL/KKD-1/CUS dated 4-11-2009 said to have been passed by the 1st respondent, the substantive grievance of the petitioner is that the 1st respondent has addressed the 2nd respondent for encashment of the Bank guarantee bearing No. 0441409BG0000002 dated 8-1-2009 issued by the 2nd respondent for a sum of Rs.55,00,000-00 towards the differential duty payable by the petitioner. Against the order-in-Original dated 4-11-2009, the petitioner has an appellate remedy before the Commissioner of Customs and Central Excise, Visakhapatnam under Section 128 of the Customs Act, 1962 (for short ‘the Act’). The appeal may be preferred within a period of sixty days from the date of communication of the order-in-Original. Sri A.Rajashekar Reddy, the leaned Assistant Solicitor General submits that the order-in-Original was communicated to the petitioner on 7-11-2009. The said submission has not been denied by the learned counsel for the petitioner. As the petitioner has sixty days time to prefer an appeal under Section 128 of the Act and in view of the Circular No. 788/21/2004-CD, dated 25-5-2004 issued by the Central Board of Excise and Customs, New Delhi, the petitioner is aggrieved by the action of the 1st respondent in seeking to enforce the Bank guarantee. It is stated by the learned counsel for the petitioner that the Bank guarantee has been renewed up to July, 2011. The Board’s Circular dated 25-5-2004 is to the effect (para 2(a)) that for cases where appeals lie with the Commissioner (Appeals) and no stay application is filed along with the appeal, recovery proceedings may be initiated after 60 days from the date of communication of the order in respect of Orders-in-Original of Commissioner. In view of the decision of this Court in W.P.No. 24060 of 2008, dated 16-12-2008, the Customs authorities are required in law and fairness to adhere to the Board’s Circular. Accordingly, the writ petition is disposed of directing the 1st respondent not to take steps for recovery of the differential duty, as determined in the 1st respondent’s order-in-Original dated 4-11-2009, for a period of 60 days from 7-11-2009 (the date of communication of the order-in-original to the petitioner) or till the petitioner prefers an appeal to the Commissioner of Central Excise and Customs, Visakhapatnam or any other appropriate appellate authority, as the case may be, whichever is earlier. Thereafter the 1st respondent shall be at liberty to take appropriate processes in accordance with law. The writ petition is disposed of as above at the stage of admission, after hearing the learned counsel for the petitioner and the learned Assistant Solicitor General for respondent No.1. No costs. ____________________________ GODA RAGHURAM, J ____________________________ RAMESH RANGANATHAN, J 17th November, 2009. GRR