2007 (11) TMI 54

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.... passed by the Tribunal under Section 35F of the Central Excise Act is in force in terms of the Hon'ble Gujarat High Court's judgment in the case of Polyfill Sacks v. UOI- 2005 (183) E.L.T. 344 (Guj.), it is not open to the Revenue to issue demand notice during the pendency of the appeal. In this connection, learned counsel have referred extensively to the judgment of the Hon'ble High Court. Learned counsel for the appellant in Appeal No. E/338/2004 has also brought to our notice an order passed by a learned Member of: the Tribunal sitting singly, in the case of Welcure Drugs & Pharmaceuticals v. CCE, Jaipur - 2006 (199) E.L.T. 358 (Tri.-Del.), wherein, after referring to the Hon'ble High Court's ruling in Polyfill Sacks case (supra), learn....

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....ls before it, grants by implication the power of doing all such acts, or employing such means, as are essentially necessary to its execution. The statutory power under the said section carries with it a duty in proper cases to make such orders for staying recovery of demand of duty, etc. pending an appeal before the Tribunal, as will prevent such an appeal, if successful, from being rendered nugatory. Sub-section (2A) of the Act was brought on statute book to ensure disposal of pending appeals within a reasonable time frame and curtail delays. But from this it is not possible to infer a legislative intent to curtail/withdraw powers of the Tribunal to grant stay in appropriate cases. It is also not possible to infer any curtailment of such p....

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....ng its judicial discretion. The period may be limited or could be co-terminous with disposal of appeal - on consideration of all relevant factors in a given fact situation. 13. Therefore, held by the Apex Court in case of Commissioner of Customs & Central Excise, Ahmedabad v. Kumar Cotton Mills (P) Ltd. (supra) an assessee cannot be punished for matters which may be completely beyond the control of the assessee. The situations set out by the Apex Court in its order are only illustrative and not exhaustive. The object of the provision is ex pressed by the Apex Court to be for the purpose of curbing the dilatory tactics of assessees, who having obtained an interim order in their favour, seek to continue the interim order while delaying the....