Statutory appellate power includes incidental stay authority, but filing an appeal does not automatically halt recovery proceedings.

A statutory appellate power carries by necessary implication the incidental authority to grant or refuse stay, but an appeal does not by itself suspend recovery proceedings unless the statute expressly says so. The absence of an express stay provision does not defeat the appellate authority's ability to make its jurisdiction effective; however, filing an appeal under Section 35 does not create an automatic stay of duty collection. The challenge based on automatic stay therefore failed, and recovery could continue pending appeal.

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Issues: Whether an appeal filed under Section 35 of the Central Excise and Salt Act, 1944 operates as an automatic stay of recovery proceedings and whether the appellate authority has implied power to grant stay even though the section does not expressly so provide.

Analysis: The provision conferring appellate power does not expressly mention stay, but the power to grant stay is incidental and ancillary to the effective exercise of appellate jurisdiction. An express grant of appellate authority carries with it, by necessary implication, the authority to employ all reasonable means required to make that jurisdiction effective. The absence of a provision in terms similar to Order 41 Rule 5 of the Code of Civil Procedure does not mean that filing an appeal itself stays collection of duty. The legal distinction between entertaining an appeal and granting stay was treated as material, and the authority was held competent to grant or refuse stay, but not subject to any automatic stay merely by reason of the appeal.

Conclusion: The appellate authority under Section 35 had implied power to grant stay, but the appeal did not : operate as a stay of recovery proceedings; the contention of automatic stay was rejected.

Final Conclusion: The writ petition was unsuccessful because the recovery proceedings were not suspended merely on the filing of the appeal, and the impugned action was not invalid on that ground.

Ratio Decidendi: A statutory appellate power carries by necessary implication the incidental authority to grant stay, but an appeal does not operate as an automatic stay unless the statute expressly so provides.

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