1985 (2) TMI 276 - AT - Central Excise

Summary

Issues:
1. Interpretation of Section 35F of the Central Excises and Salt Act.
2. Applicability of pre-deposit of duty in appeal cases.
3. Request for waiver of pre-deposit versus stay order for recovery.
4. Exercise of incidental and ancillary power by the Tribunal.
5. Consideration of new facts for unconditional stay order.

Analysis:

The judgment by the Appellate Tribunal CEGAT NEW DELHI revolves around the interpretation and application of Section 35F of the Central Excises and Salt Act. The appeal in question was initially filed as a revision application before the Central Government against an order passed by the Central Board of Excise and Customs. The applicants contended that pre-deposit of duty should not be necessary as the revision application was filed before the introduction of Section 35F. However, the Tribunal referred to the legal proposition established in the case of Aminchand Payarelal v. Collector of Central Excise, Chandigarh, which clarified that the provisions of Section 35F apply to all appeals filed on or after a specific date, regardless of the initiation of the original proceeding. This decision overruled previous judgments on the matter.

The Tribunal emphasized the distinction between requesting a waiver of pre-deposit and seeking a stay order for recovery. It noted that the power to grant a stay order is an incidental and ancillary power exercised by the Tribunal in its quasi-judicial functions. In this case, the appellants had only requested a stay against the recovery of duty, not a waiver of pre-deposit. The Tribunal granted a stay order on the condition that a partial amount be paid in cash and a bank guarantee be furnished for the remaining duty amount.

The judgment highlighted that the order for stay was not passed under Section 35F but was based on the Tribunal's incidental power. The appellants failed to present any new facts warranting an unconditional stay order. Therefore, the appeal was allowed to proceed without insisting on the pre-deposit requirement under Section 35F, but the stay of recovery was subject to the conditions set in the previous order issued by the Tribunal.