2015 (7) TMI 188 - AT - Service Tax

Extension of stay order - Power of Tribunal - Held that - Sub-section (1) of section 35B did not grant any power to grant stay; it only sought to put fetters on the power of the Tribunal to grant stay beyond a certain period. Consequently its abolition can only have an effect that fetters which the said sub-section sought to place on the Tribunal with regard to the duration beyond which CESTAT could not grant stay no longer exist. Tribunal had power to extend the stay beyond the period of 365 days in cases where appellant was ready and willing to pursue the appeal, but the Tribunal owing to the older pendency was unable to take up the appeal. In the light of the foregoing, we reject the contention of ld. Departmental Representative and. having regard to the fact that the delay in taking up these appeals is not attributable to the appellants, extend the stay granted earlier to operate during the pendency thereof. - Stay extended.

Summary

Issues:
1. Extension of stay granted by the Tribunal.
2. Abolition of Section 35C(2A) of the Central Excise Act, 1944 affecting the power of the Tribunal to grant extension of stay.

Extension of Stay Granted by the Tribunal:
The appellant filed a Miscellaneous Application seeking an extension of the stay granted earlier by the Tribunal, as the Revenue was insisting on recovery despite the Stay Order. The Departmental Representative argued that Section 35C(2A) of the Central Excise Act, 1944 had been abolished, implying that the Tribunal no longer had the power to grant an extension of stay. However, the Tribunal noted that the power to grant stay is inherent, as established in previous cases such as Shri Ram Narayan Dyg. & Ptg. Mills Vs. CCE, Surat-I and CCE, Chandigarh Vs. Baldev Raj Ram Murthi. The Tribunal emphasized that even though the specific provision for granting stay was not in the Statute, it remained an inherent power of the Tribunal. Therefore, the Tribunal rejected the Departmental Representative's contention and extended the stay granted earlier due to delays not attributable to the appellants.

Abolition of Section 35C(2A) Impact on Tribunal's Power:
The Tribunal examined the impact of the abolition of Section 35C(2A) of the Central Excise Act, 1944 on its power to grant stay. The sub-section did not grant the power to grant stay but rather imposed restrictions on the duration for which the Tribunal could grant stay. With the abolition of this section, the fetters restricting the Tribunal's power to grant stay beyond a certain period were removed. Even before the abolition, in the case of Halidram India Pvt Ltd. Vs. CCE, Delhi, the Tribunal had upheld its power to extend stay beyond the specified period in cases where the appellant was willing to pursue the appeal, but the Tribunal was unable to take up the appeal due to older pending cases. Therefore, the Tribunal clarified that the abolition of Section 35C(2A) did not diminish its power to grant stay, and it could still extend the stay granted earlier, especially when delays were not the fault of the appellants.

In conclusion, the Tribunal reaffirmed its inherent power to grant stay, emphasizing that the abolition of Section 35C(2A) did not affect this authority. The judgment highlighted the Tribunal's ability to extend stays, particularly in cases where delays were not caused by the appellants.