1984 (11) TMI 319

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....rential duty became payable by the appellants. Aggrieved from this order, the appellants filed an appeal to the Collector of Central Excise (Appeals), Bombay. Before the said Collector, an application for the stay of the recovery of the disputed amount was also made. That application was dismissed by the impugned order dated 21-7-1984. Against this order, the present appeal has been preferred. 2. Shri Mahesh Kumar, the learned Senior Departmental Representative, appearing on behalf of the respondent, raised a preliminary objection that no appeal against the order of dismissal of the stay application was maintainable. In support of his contention, he relied on an order of this Tribunal bearing No. 371/84-D passed on 2-7-1984 in Appea....

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....then moved the High Court under Article 226 of the Constitution. The High Court held that the Tribunal had the power to stay the proceedings as also the collection of the penalties pending the appeal since that power was incidental and ancillary to its appellate jurisdiction. (emphasis supplied). 4. It is admitted by both the sides that the Central Excises and Salt Act, 1944 does not have any provision to stay the recovery of the disputed amounts. The incidental or ancillary powers to stay such recoveries can be exercised by this Appellate Tribunal or by the Collector (Appeals), provided the main appeal is pending before any of these authorities. As already pointed out, the main appeal in this case is admittedly pending before th....

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....of interim orders. 7. It will also be relevant at this stage to make a reference to Section 35F of the Act. This provision envisages that an appeal can only be heard by Collector (Appeals) or by this Tribunal, if the disputed amount is deposited before the hearing of the same. What we observe is that there is no impediment in filing the appeal, but there is a bar to its hearing unless the condition precedent of pre-deposit is fulfilled. Pre-deposit is a general rule but an exception is recited in the proviso of this Section where undue hardship occurs to aggrieved party. In the event of such hardship, the pre-deposit can be dispensed with. There is, however, a rider that while exercising this discretion, the interests of the Revenue....

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....ted that the appellants had not exercised their right to seek this relief provided by the statute. On the other hand, there appears to be a deliberate attempt to circumvent Section 35F by moving an application for the stay of the recovery of the amount on the plea of invoking incidental or ancillary powers, thus evolving a contrivance to render the provisions of Section 35F, both nugatory and redundant. This cannot be the intention of the Act. 9. On going through the case law (which unfortunately the parties failed to refer) we find that the present matter in controversy has already been set at rest by the Supreme Court in its various decisions. In this connection we cite AIR 1974 Supreme Court 1126 (Smt. Ganga Bai v. Vijay Kumar an....