TaxTMI 
TaxTMI 
2005 (2) TMI 148
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....ct, 1944 (the Act) before the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) accompanied by an application for stay of demand. After hearing the parties on 21st May, 1996 an order came to be made by the CESTAT: for the purpose securing the interest of revenue the appellant was directed to furnish a Bank Guarantee in the sum of Rs. 1,00,000/- (Rupees One lac only) within a period of two months and report compliance on 12th August, 1996. It is an admitted position that since then the Bank Guarantee, furnished by the petitioner, has been extended from time to time and lastly on 29th March, 2004, respondent No. 4 had informed respondent No. 2 that the Bank Guarantee had been extended up to 6th July, 2005. 3. The grievance of the petitioner is that despite the order made by the CESTAT staying recovery of duty and penalty amount, an order of attachment (Annexure-D) came to be made on 6th September, 2004. This order was followed by invoking and encashment of Bank Guarantee No. 24/4 for a sum of Rs. 1,00,000/- (Rupees One lac only) vide another order dated 6th September, 2004. 4. Mr. Dhaval Shah, learned Advocate for the petitioner, has stated that reliance placed by the....
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....uch order : Provided further that if such appeal is not disposed of within the period specified in the first proviso, the stay order shall, on the expiry of that period, stand vacated.]" On a plain reading of the provision it becomes apparent that where an order of stay is made in any proceeding relating to an appeal, the Tribunal is required to dispose of the appeal within a period of 180 days from the date of such an order granting stay of recovery and under the Second Proviso it is laid down that in case such appeal is not disposed of within the period specified in the First Proviso, on the expiry of the said period, the stay order shall stand vacated. The main provision states that 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 of filing. 7. Thus, the scheme is that an appeal is required to be disposed of within a period of three years from the date of filing, but where, stay is granted by the Tribunal, the said period of three years stands curtailed to 180 days from the date of the order granting stay. Though the language employed by the statute appears to be mandatory in term....
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....atter of the proviso, the enacting part should be generally given such a construction which would make the exceptions carved out by the proviso necessary and the construction which would make the exceptions unnecessary and redundant should be avoided (See Principles of Statutory Interpretation by Justice G.P. Singh Eighth Edition, 2001, pages 168, 169, 174, 175 and 176)." 8. When legislature has provided in the main provision, i.e. sub-section (2A) of Section 35C of the Act, that CESTAT may hear and decide the appeal within a period of three years, where it is possible to do so, legislature is well aware of the administrative exigencies and difficulties of the said body. There could be a host of reasons ranging from non-availability of a bench due to non-appointment of adequate number of technical and/or judicial members at a particular station to the quantum and quality of appeals at a particular station. One cannot and should not even attempt to exhaustively list these. Suffice it to state - the discretion available to CESTAT under Section 35C(2A) of the Act does not stand obliterated by insertion of the two provisos, and more particularly by the Second Proviso. 9. The matt....
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....uld, as a matter of practice, specify the time period during which the stay shall operate after exercising 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 expressed 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 disposal of the proceedings. The observations i.e. the last sentence on which reliance has been placed by the learned Senior Standing Counsel regarding latitude being given to the Tribunal are relatable only in the situation where extension of period of stay is sought. 14. In the facts of the present case, it is not even the case of the resp....