9911796707
TMI Blog2003 (9) TMI 389X X X X Extracts X X X X X X X X Extracts X X X X ..... ations involve a common issue: whether the Tribunal can grant stay beyond a period of 180 days. The newly inserted sub-section (2A) of Section 35C of the Central Excise Act, 1944 reads as under :- The Appellate Tribunal shall, where it is possible to do so, hear and decide every appeal within a period of three years from the date on which such appeal is filed : Provided that where an order of stay is made in any proceeding relating to an appeal filed under sub-section (1) of section 35B, the Appellate Tribunal shall dispose of the appeal within a period of one hundred and eighty days from the date of such order: Provided further that if such appeal is not disposed of within the period specified in the first proviso, the stay order sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound inconvenient or bent to suit political expediency, and that the clear mandate of Article 164 cannot be allowed to be frustrated by giving a gap of a few days and making a re-appointment. The Apex Court also opined, The words used may be general in terms but, their full import and true meaning, has to be appreciated considering the true context in which the same are used and the purpose which they seek to achieve. 3. In the light of the aforesaid pronouncement of the Apex Court, when we look at the language of sub-section (2A) of Section 35C of the Central Excise Act, 1944, the legislative intent of the said sub-section clearly emerges as follows :- (i) Where possible, the Tribunal shall decide every appeal within a perio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t lie in ignoring a specific legal restraint imposed under the said sub-section (2A) and in granting extensions beyond 180 days, but perhaps in initiating urgent administrative and structural reforms such as :- (i) Urgent Recruitment of Additional Members and creation of Additional Benches by the Government at Mumbai for a period of 2-3 years. Section 129 (1) of the Customs Act, 1962 allows the Central Government to appoint as many Members as it thinks fit. (ii) Urgent filling of vacancies of Members and temporary shifting of Members and supporting staff to Mumbai from Zones of low pendency. (iii) Notifying and giving urgent effect to proviso (d) to sub-section (1) of Section 35B inserted by Finance (No. 2) Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even though order of stay of recovery will automatically lapse on the expiry of 180 days as provided under sub-section (2A) of Section 35C. We are making a distinction between waiver of pre-deposit and stay of recovery as the power to dispense with pre-deposit is a statutory power under Section 35F whereas the power to stay recovery is an incidental power of the Tribunal which is now restricted by the said sub-section (2A) of Section 35C. The vires of such restriction imposed under the statute cannot of course be questioned by the Tribunal, being a creature of the same statute. 6. We also note in this regard the Apex Court s observation in C.C. Bombay v. Krishna Sales (P) Ltd. - 1994 (73) E.L.T. 519 (S.C.) that, As is well-known, mere f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ma Rao v. State of Pondichery P.1680 which declares :- It is trite to say that a decision is binding not because of its conclusions but in regard to its ratio and the principles laid down therein. Any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be a declaration of or authority of a general nature binding as a precedent. Following the Apex Court decision, we are unable to follow the said non-speaking order of the 3-Member Bench as well as non-speaking orders of other co-ordinate Benches. We, in fact, note a contrary decision rendered by a 3-Member Bench in the case of CCE, Bhubaneswar v. Oripol Industries - 2003 (155) E.L.T. 278 (Tri-LB) in the context of another amen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o such case before the Tribunal to decide upon. We are unable to agree that such a decision given in a vacuum in the absence of a dispute becomes a binding precedent for co-ordinate Benches. 10. In view of the foregoing, our findings are as follows :- (i) Section 35F requires pre-deposit of duty and penally pending appeal. (ii) Proviso to the said Section 35F gives statutory power to the Tribunal to dispense with such pre-deposit in suitable cases. (iii) Since no amendment has been made to Section 35F, Tribunal s power to waive pre-deposit during the pendency of appeal remains unaltered. (iv) Power of the Tribunal to stay recovery and to grant stay of an order appealed against is incidental to exercisi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
