9911796707
TMI Blog2013 (4) TMI 206X X X X Extracts X X X X X X X X Extracts X X X X ..... , its duration has to be treated as co-terminus with the disposal of appeal. Therefore while the application for early hearing is dismissed, the Department is, directed not to take coercive action for recovery - The miscellaneous application stands disposal of as above. Decision in the case of Poly Fill Sacks vs. Union of India [2005 (2) TMI 148 - HIGH COURT OF GUJARAT] followed. - E /721/2012 - MO/56242/2013 - Dated:- 15-2-2013 - Rakesh Kumar, J. For the Appellant Satish Chandra. For the Respondent S.K. Panda. JUDGEMENT:- 1. This is an application for early hearing of the appeal as the Department, inspite of stay order dtd 11.05.2012 is pressing for recovery. 2. Heard Sh. Satish Chandra, Proprietor of the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting 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 shall, on the expiry of that period, stand vacated.]" On the plain reading of the provision it becomes apparent that where an order of stay is made in any proceeding relating to an appeal, the Tribunal is required to dispose of the appeal within a period of 180 days from the date of such an order granting stay of recovery and under the Second Proviso, it is laid down that in case such appeal is not disposed of within th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a proviso is to except something out of the enactment or to qualify something enacted therein which, but for the proviso, would be within the purview of the enactment. To this real nature of proviso is also another principle of interpretation that the proper function of a proviso is that it qualifies the generality of the main enactment by providing an exception. Ordinarily, it is foreign to the proper function of proviso to read it as providing something by way of an addendum or dealing with a subject which is foreign to the main enactment. Proviso can be taken aid of as useful guide to construction of the main enactment. If the enacting portion of a Section is not clear a proviso appended to it may give an indication as to it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are of the administrative exigencies and difficulties of the said body. There could be a host of reasons ranging from non-availability of a bench due to non appointment of adequate number of technical and/or judicial members at a particular station to the quantum and quality of appeals at a particular station. One can not and should not even attempt to exhaustively list these. Suffice it to state-the discretion available to CESTAT under Section 35C ( 2A ) of the Act does not stand obliterated by insertion of the two provisos, and more particularly by the Second Proviso. 9. The matter may be considered from a slightly different angle. Section 35C (1) of the Act empowers CESTAT to pass such orders, on an appeal before it, as CESTAT think ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venue that the assessee must approach the Tribunal and seek extension of stay already granted is misconceived - at least in relation to orders of the Tribunal made before 11.05.2002. Firstly, it proceeds on a fallacious premise as stated hereinbefore. Secondly, in absence of any change in circumstances why should the Tribunal be inundated with extension applications when admittedly, it is already overburdened and reeling under backlog of pending appeals. 11. However, in case where the Revenue finds that a particular assessee having obtained stay is adopting dilatory tactics, it is always open to Revenue to move the Tribunal in such an eventuality. 12. For the period subsequent to the insertion of the Second Proviso the Tribunal sh ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
