2014 (10) TMI 194 - AT - Central Excise

Application under Section 35F - Whether the Revenue can file application before the Tribunal, seeking stay of operation of the order passed by the Commissioner (Appeals) - Held that - there is no provision exist that an application can be filed, especially by the Revenue department, seeking stay of operation of the impugned order till disposal of appeal by the appellate authorities. Filing of such application has no legal sanctity because, neither any duty demand has been confirmed nor any penalty imposed in the adjudication order against the Revenue department. Hence, in my considered opinion, in absence of any specific provisions contained in the Central Excise statute, the department is precluded in filing the application, seeking stay of operation of the impugned order. Further, I find that the application for stay has been filed under Section 35 of the Act, which deals with filing of appeals before the Commissioner (Appeals). There is no reference in the said Section for filing the stay application before the Appellate Tribunal. - Decided against Revenue.

Summary

Issues:
- Whether the Revenue can file an application before the Tribunal seeking stay of operation of the order passed by the Commissioner (Appeals).

Analysis:
1. The case involved the question of whether the Revenue could file an application seeking stay of the operation of an order passed by the Commissioner (Appeals) under Section 35 of the Central Excise Act, 1944.

2. The appellant-Revenue filed a stay application under Section 35 of the Act seeking a stay of the operation of the order passed by the Commissioner (Appeals) in favor of the respondent.

3. Section 35F of the Central Excise Act, 1944 mandates that a person desiring to appeal against any decision or order must deposit the duty demanded or penalty levied pending the appeal. The first proviso to Section 35F empowers the appellate authorities to dispense with this requirement under certain conditions to safeguard the interest of Revenue.

4. The statutory provision of Section 35F applies to individuals against whom duty demand has been confirmed or penalty imposed. Without confirmation of duty demand or imposition of penalty in the adjudication order, there is no basis for filing an application under Section 35F before the appellate authorities.

5. The absence of any provision in Chapter VIA of the Act allows the Revenue department to file an application seeking a stay of operation of the impugned order until the appeal is disposed of by the appellate authorities. As no duty demand has been confirmed nor any penalty imposed against the Revenue department, filing such an application lacks legal basis.

6. The judgment highlighted that the application for stay was filed under Section 35 of the Act, which pertains to filing appeals before the Commissioner (Appeals) and does not provide for filing a stay application before the Appellate Tribunal. Consequently, the Tribunal found the stay application filed by the Revenue to be not maintainable and dismissed it accordingly.