TaxTMI 
TaxTMI 
2003 (9) TMI 389
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....y, Member (T)]. - These 17 applications involve a common issue: whether the Tribunal can grant stay beyond a period of 180 days. The newly inserted sub-section (2A) of Section 35C of the Central Excise Act, 1944 reads as under :- "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 ....
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....estraints must not be ignored or bypassed if found inconvenient or bent to suit political expediency, and that the clear mandate of Article 164 cannot be allowed to be frustrated by giving a gap of a few days and making a re-appointment. The Apex Court also opined, "The words used may be general in terms but, their full import and true meaning, has to be appreciated considering the true context in which the same are used and the purpose which they seek to achieve." 3. In the light of the aforesaid pronouncement of the Apex Court, when we look at the language of sub-section (2A) of Section 35C of the Central Excise Act, 1944, the legislative intent of the said sub-section clearly emerges as follows :- (i) &n....
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....nal Benches at Mumbai and that appeals filed in 1997/1998 are being presently heard. However, the Benches at Calcutta and Delhi have no mounting pendency and they are hearing current cases. In our view, the solution to the problem of some of the Mumbai Benches not being able to decide appeals within a period of 180 days of granting stay does not lie in ignoring a specific legal restraint imposed under the said sub-section (2A) and in granting extensions beyond 180 days, but perhaps in initiating urgent administrative and structural reforms such as :- (i) Urgent Recruitment of Additional Members and creation of Additional Benches by the Government at Mumbai for a period of 2-3 years. S....
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.... stay beyond 180 days after enactment of the Finance Act, 2002. 5. While holding that the Tribunal does not have power to grant extension of stay beyond 180 days, we hasten to add that the power to dispense with pre-deposit of duty and penalty under Section 35F is a distinct and separate power and the same is not affected by amendment made to Section 35C. In the absence of specific amendment to Section 35F, we are of the view that where waiver of pre-deposit is granted, the same will continue and the appeals will not be dismissed even though order of stay of recovery will automatically lapse on the expiry of 180 days as provided under sub-section (2A) of Section 35C. We are making a distinction between waiver of pre-deposit and stay....
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....the power of ITAT under Section 254 of the Income-tax Act is clearly wrong. (ii) CEGAT has no inherent powers. It being a creature of statute, it can exercise such powers only which have been conferred by the statute." 8. The learned Counsels for the applicants have also brought to our notice decision of a 3-Member Bench in the case of Himalaya International Ltd. v. CCE, Chandigarh which reads as follows :- "Heard both sides. Interim stay is extended till the disposal of the appeal." In this regard, we are guided by the Apex Court decision reported in AIR 1967 S.C. Shama Rao v. State of Pondichery P.1680 which declares :- "It is trite to say that a decision is binding not b....
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.... to the Finance Bill, 2002 also support the view that after enactment of the Finance Act, 2002 on 11-5-2002, the Tribunal does not have power to extend stay orders beyond 180 days. 9. The learned Counsels for the applicants have also cited Tribunal's order in the case of Kumar Cotton Mills v. C.C.E., Ahemedabad - 2002 (146) E.L.T. 438 before us. The said order in paragraph 33 clearly states that the issue related in that case to grant of stay before insertion of sub-section (2A) of Section 35C. Yet, the Tribunal proceeded to give a finding that stay granted after insertion of sub-section (2A) can also be extended, though there was no such case before the Tribunal to decide upon. We are unable to agree that such a decision given in a....