1984 (11) TMI 319 - AT - Central Excise

Summary

Issues:
1. Maintainability of appeal against the order of dismissal of stay application.
2. Exercise of incidental or ancillary powers by the Tribunal.
3. Interpretation of Section 35A and its applicability to interlocutory orders.
4. Provisions of Section 35F regarding pre-deposit for hearing appeals.
5. Applicability of case law on the maintainability of appeals.

Analysis:

Issue 1: Maintainability of appeal against the order of dismissal of stay application
The appellants challenged the order of the Collector (Appeals) dismissing their application for stay of recovery of disputed amounts. The Departmental Representative contended that no appeal against the dismissal of the stay application was maintainable, citing a Tribunal order. The Tribunal observed that the Central Excises and Salt Act did not provide for staying recovery of disputed amounts. As the main appeal was pending before the Collector (Appeals) and not the Tribunal, the appeal against the stay order was held not maintainable.

Issue 2: Exercise of incidental or ancillary powers by the Tribunal
The appellants sought to invoke incidental or ancillary powers of the Tribunal to grant the stay of recovery. However, the Tribunal noted that such powers could only be exercised when the main appeal was pending before the Tribunal or the Collector (Appeals). Since the appeal was still pending before the lower forum, the Tribunal could not enlarge the scope of existing provisions to grant the stay.

Issue 3: Interpretation of Section 35A and its applicability to interlocutory orders
The Tribunal clarified that Section 35A of the Act related to final orders or decisions, not interlocutory orders. It emphasized that statutory provisions could not be expanded based on equity or justice. The Tribunal held that decisions in the nature of interim orders could not be brought under Sections 35A and 35B of the Act.

Issue 4: Provisions of Section 35F regarding pre-deposit for hearing appeals
Section 35F mandated depositing the disputed amount before an appeal could be heard, with a provision to dispense with pre-deposit in cases of undue hardship. The appellants did not seek this relief but attempted to circumvent the pre-deposit requirement by applying for a stay. The Tribunal noted that the pre-deposit condition still applied, and failure to deposit the disputed amount would lead to the rejection of the appeal.

Issue 5: Applicability of case law on the maintainability of appeals
The Tribunal referred to Supreme Court decisions emphasizing that the right of appeal was a creature of statute and must have clear authority of law for maintainability. Citing relevant case law, the Tribunal held that an appeal was limited by the law granting that right. As the appeal in question lacked the clear authority of law due to the absence of a provision for staying recovery, the preliminary objection raised by the Departmental Representative was upheld, leading to the dismissal of the appeal.

In conclusion, the Tribunal dismissed the appeal as not maintainable due to the absence of statutory authority for staying recovery of disputed amounts and the failure to follow the pre-deposit requirement under Section 35F.