TaxTMI 
TaxTMI 
2015 (8) TMI 1056
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....extent ? 2. The Tribunal, in some of the appeals, have extended the interim order for a period of six months. In some other appeals, the Tribunal has extended the interim order till the disposal of the appeal. The Department, being aggrieved, has filed the appeals questioning the power of the Tribunal to extend the stay beyond the period of 365 days. 3. We have heard Sri Ashok Singh, Sri R.C.Shukla, Sri B.K.S. Raghuvansi, Sri Amit Mahajan and Sri Vinod Kant, the learned counsels for the appellant and Sri S.D.Singh, the learned senior counsel along with Sri Nishant Mishra, Devnath, Sri Ashok Kumar and Sri A.P. Mathur, the learned counsel for various assessees. 4. The controversy lies in a very narrow compass. Section 35-F of the Act provides that any person desirous of appealing against an order demanding duty shall pending appeal deposit with the adjudicating authority, the duty demanded or the penalty levied, provided in any particular case, if the appellate authority or the Tribunal is of the opinion that the deposit of duty demanded or penalty levied, would cause undue hardship to such person, the appellate authority or the Tribunal may dispense with such deposit subjec....
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....ing of the appeal is not attributable to such party, extend the period of stay to such further period as it thinks fit, not exceeding one hundred and eighty five days, and in case the appeal is not so disposed of within the total period of three hundred and sixty five days from the date of order referred to in the first proviso, the stay order shall, on the expiry of the said period, stand vacated." 8. Upon the insertion of Section 35C (2A) of the Act, a mandate was given to the Tribunal to decide the appeal within a period of three years "where it is possible to do so". 9. The first proviso to sub section (2-A) of Section 35C of the Act indicates, that if any order of stay was passed by the Tribunal in which case, the appellate tribunal shall dispose of the appeal within 180 days. The second proviso stated that if the appeal was not disposed of within 180 days then the stay order would stand vacated upon the expiry of 180 days. The third proviso, which was added by the Finance Act, 2013, further stipulated that when the appeal was not disposed of within 180 days, the appellate Tribunal, if it was satisfied that the delay in disposal of the appeal was not attributable to the ....
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....sub-section (1) of section 35, unless the appellant has deposited seven and a half per cent. of the duty, in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in dispute, in pursuance of a decision or an order passed by an officer of Central Excise lower in rank than the (Principal Commissioner of Central Excise or Commissioner of Central Excise]; (ii) against the decision or order referred to in clause (a) of sub-section (1) of section 35B, unless the appellant has deposited seven and a half per cent. of the duty, in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in dispute, in pursuance of the decision or order appealed against; (iii) against the decision or order referred to in clause (b) of sub-section (1) of section 35B, unless the appellant has deposited ten per cent. of the duty, in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in dispute, in pursuance of the decision or order appealed against: Provided that the amount required to be deposited under this section shall not exceed rupees ten crores: Provided further that the pro....
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....ithin 90 days became mandatory on account of the use of the word "shall". The Supreme Court, while interpreting the said provision in Salem Advocate Bar Association, Tamil Naudu vs. Union of India, AIR 2005 SC 3353, held that the provision providing for a maximum period of 90 days for filing the written statement was not mandatory and the Court, therefore, was not altogether powerless to extend the time even in exceptionally hard case. The Supreme Court held, that the use of the word "shall" under Order VIII Rule 1 of the C.P.C. by itself was not conclusive to determine whether the provision was mandatory or directory. The use of the word "shall" was ordinarily indicative of the mandatory nature of the provision, but, having regard to the context in which it was used and having regard to the intention of the legislation, the same could be construed as directory. 21. In the instant case Section 35 C (2A) gave a mandate to the Tribunal to decide the appeal within three years "where it was possible to do so". These words indicate the intention of the legislation, namely, that the appeal should be decided as far as possible within three years and therefore, the provision is not conc....