1975 (11) TMI 43 - HC - Central Excise

Summary

Issues:
- Whether filing an appeal under Section 35 of the Central Excise and Salt Act, 1944 operates as an automatic stay of collection of duty?
- Whether the Appellate Authority under Section 35 of the Act has the implied power to grant stay?

Analysis:
1. The petitioners contended that filing an appeal under Section 35 of the Act automatically stays the collection of duty, without the need for a separate stay petition. They argued that the wording of Section 35 differs from Order 41 Rule 5 of the CPC, which deals with stays in civil proceedings.

2. The learned Counsel for the petitioners relied on the distinction between Section 35 of the Act and Order 41 Rule 5 of the CPC to support their argument that the appeal itself should operate as a stay.

3. The court examined the relevant provisions of the Act and the CPC. While Order 41 Rule 5 of the CPC explicitly addresses stays, Section 35 of the Act does not mention the power to grant stay. However, the court held that the absence of an express provision in Section 35 does not preclude the Appellate Authority from granting stay as it is incidental to its appellate jurisdiction.

4. Citing the decision in Income Tax Officer v. Mohammed Kunhi, the court emphasized that statutory powers carry implied authority to use all reasonable means to make the grant effective. The court referred to legal authorities to support the principle that an express grant of jurisdiction implies the power to do all acts necessary for its execution.

5. The court concluded that the Appellate Authority under Section 35 of the Act has the implied power to grant stay, even though the provision does not expressly confer such power. Therefore, the contention that filing an appeal automatically stays all recovery proceedings was rejected.

6. The court also addressed the issue of the Appellate Authority not communicating any order on the stay petition filed by the petitioners. It directed the authorities to promptly dispose of the stay petition and communicate the decision to the petitioners.

7. The court dismissed the writ petition, holding that even if the duty remains unpaid, the appeal should be decided on its merits by the Appellate Authority under Section 35 of the Act. The petitioners were ordered to pay costs.

This judgment clarifies the interpretation of Section 35 of the Central Excise and Salt Act, 1944 regarding the power of the Appellate Authority to grant stay and emphasizes the principle that implied powers are inherent in statutory grants of jurisdiction.