1985 (1) TMI 198 - AT - Central Excise

Summary

Issues:
- Stay petition filed by the Collector of Central Excise challenging an order passed by the Collector (Appeals) Central Excise, Calcutta.
- Interpretation of Section 35F of the Central Excises & Salt Act, 1944 regarding the deposit of duty demanded or penalty levied pending appeal.
- Examination of the Tribunal's powers to grant stay in matters where the revenue is the appellant.
- Comparison of the powers of the Tribunal under the Income-Tax Act, 1961 and the Central Excises & Salt Act, 1944.

Analysis:

The judgment pertains to a stay petition filed by the Collector of Central Excise against an order issued by the Collector (Appeals) Central Excise, Calcutta. The Collector of Central Excise sought a stay on the decision pending appeal. The appeal was presented along with a letter of authorization under Section 35A(2) of the Central Excises & Salt Act, 1944. The issue at hand was whether the stay petition filed by the revenue was valid under Section 35F of the Act.

Upon hearing arguments from both sides, the Tribunal observed that Section 35F of the Central Excises & Salt Act, 1944 mandates that any person appealing against a decision must deposit the duty demanded or penalty levied pending the appeal. The Tribunal clarified that the revenue is not required to make any deposit before the adjudicating authority, thus concluding that no stay application from the revenue lies under Section 35F. However, the Tribunal highlighted that it possesses inherent powers to grant stay in matters where the revenue is the appellant, citing the judgment in the case of ITO v. Md. Koohni and the subsequent ruling by the Patna High Court in Pooranmal Kuntia v. I.T.O.

The Tribunal further discussed the broad powers vested in it, drawing a comparison between Section 254(1) of the Income-Tax Act, 1961 and Section 35C(1) of the Central Excises & Salt Act, 1944. It noted that the powers of the Customs Excise & Gold (Control) Appellate Tribunal are more extensive compared to the Tribunal under the Income-Tax Act, 1961. Based on these considerations, the Tribunal rejected the stay application filed by the Revenue, emphasizing the wider discretion available to it in granting or denying stays in matters involving the revenue as the appellant.

In conclusion, the judgment clarifies the statutory requirements for depositing duty or penalty pending appeal under Section 35F, delineates the Tribunal's inherent powers to grant stays, and underscores the broader authority of the Tribunal under the Central Excises & Salt Act, 1944 compared to the Income-Tax Act, 1961.