2015 (1) TMI 717 - HC - Central Excise

Extension of stay order - Held that - It is pertinent to mention that when the Co-ordinate Bench of this Court passed the order 2013 (9) TMI 778 - KARNATAKA HIGH COURT the 3rd proviso was not brought to the notice of the Court. According to the 3rd proviso to sub-section (2A) of Section 35C of the Act, an application could be made to the Tribunal by a party and on being satisfied that the delay in disposing of the appeal is not attributable to such party, extend the period of stay to such further period as it thinks fit not exceeding one hundred and eighty-five days and in case the appeal is not so disposed of within the total period of three hundred and sixty-five days from the date of order referred to in the first proviso the stay order shall, on the expiry of the said period, stand vacated. In view of the said proviso, the appellant can move the Tribunal either for vacating stay or for disposal of the appeal as the case may be. - Appeal disposed of.

Summary

Issues:
Challenge under Section 35G of the Central Excise Act, 1944 regarding extension of interim order granted by the Tribunal until disposal of the appeal.

Analysis:
The appellant challenged the order dated 21-5-2013 made by the Tribunal, extending the interim order granted on 21-6-2012 until the disposal of the appeal. The appellant argued that the Tribunal erred in extending the stay order beyond the specified period of 180 days as per sub-section (2A) of Section 35C of the Act. The appellant contended that the Tribunal's action was contrary to the proviso of the Act and pointed out the insertion of the 3rd proviso by the Finance Act, 2013, allowing for an extension of the stay period under certain conditions.

The respondent defended the Tribunal's decision, stating that the appeal could not be disposed of due to no fault of the appellant. The respondent suggested that the appellant should have requested the Tribunal to vacate the stay order instead of approaching the Court. Additionally, the respondent argued that there was no merit in the appeal.

The appellant's counsel referred to a previous order by the Court in a similar case, where the appeal was allowed, and the matter was remitted to the Tribunal for reconsideration. The Court noted that the 3rd proviso to sub-section (2A) of Section 35C, allowing for an extension of the stay period, was not brought to its attention during the previous order. The Court highlighted that under the 3rd proviso, the appellant could have approached the Tribunal for either vacating the stay or disposing of the appeal within the specified time frame.

Considering the arguments presented, the Court disposed of the appeal, granting the appellant the liberty to approach the Tribunal and seek an appropriate order, in line with the provisions of the Central Excise Act, 1944.