2014 (12) TMI 460 - AT - Service Tax

Extension of Stay Beyond 365 Days Mandated in Central Excise Act

M/s. Labh Construction Versus Commissioner of Central Excise & ST., Vadodara

The High Court allowed the extension of stay beyond 365 days under Section 35C(2A) of the Central Excise Act, 1944, provided the appellant did not cause ... Power of tribunal to grant stay beyond the total period of 365 days - extension of stay granted earlier - extension order should be speaking or not - Held that:- It is noticed from the records that Stay/Partial Stay was granted to the appellant on 30.03.2012. After granting of stay to the appellant this appeal has never been listed for final hearing. The appeal could not be listed for final hearing by the Registry due to heavy work load as the appeals filed for the earlier period are being listed. Hon’ble Gujarat High Court has held that extension can be allowed by the Bench looking to the facts and circumstances of this case. We find that there is no fault of the appellant in seeking extension of the stay already granted. The request made by the appellant is genuine and extension of stay is granted till the disposal of appeal. - Following decision of Commissioner of Customs & Central Excise, Ahmedabad vs. Kumar Cotton Mills Pvt. Limited [2005 (1) TMI 114 - SUPREME COURT OF INDIA] and Commissioner Versus Small Industries Development Bank of India [2014 (7) TMI 738 - GUJARAT HIGH COURT] - Stay extended. Issues:Extension of stay beyond 365 days under Section 35C(2A) of the Central Excise Act, 1944 - Requirement of passing a speaking/reasoned order by the Appellate Tribunal while extending stay.Analysis:Issue 1: Extension of stay beyond 365 days under Section 35C(2A) of the Central Excise Act, 1944The Hon'ble High Court, based on the Supreme Court's decision in the case of Commissioner of Customs & Central Excise vs. Kumar Cotton Mills Pvt. Limited, held that the Appellate Tribunal (CESTAT) has the authority to extend the stay beyond the statutory period of 365 days as per Section 35C(2A) of the Central Excise Act, 1944. The High Court clarified that the extension of stay can be granted if the delay in disposing of the appeal within the stipulated time is not due to the fault of the appellant, and the appellant has cooperated in the early disposal of the appeal without resorting to any delay tactics or seeking undue advantage.Issue 2: Requirement of passing a speaking/reasoned order by the Appellate Tribunal while extending stayThe High Court emphasized that while considering each application for extension of stay, the Appellate Tribunal must pass a detailed speaking order. The Tribunal is required to assess whether the delay in disposing of the appeal within 365 days is attributable to the appellant, whether the appellant has cooperated in expediting the appeal process, and whether there are any delay tactics or attempts to gain undue advantage. The Tribunal should record its subjective satisfaction in each case and provide an opportunity to the revenue department to present its views. The High Court directed that non-speaking and non-reasoned orders should be remanded back to the Tribunal for fresh consideration and issuance of detailed speaking orders.In conclusion, the High Court ruled in favor of the appellant regarding the extension of stay beyond 365 days if certain conditions are met. However, it was held that the Appellate Tribunal must pass speaking and reasoned orders while extending stay, considering the specific circumstances of each case. The Tribunal was directed to review extension applications within 180 days intervals, ensuring that the appeals are disposed of promptly, particularly in cases where stay is in favor of the revenue. The High Court remanded all matters back to the Tribunal for fresh orders within a specified timeframe, maintaining the continuation of stay orders during the review period.