9911796707
TMI Blog2005 (2) TMI 148X X X X Extracts X X X X X X X X Extracts X X X X ..... who having obtained an interim order in their favour, seek to continue the interim order while delaying the disposal of the proceedings. The observations i.e. the last sentence on which reliance has been placed by the learned Senior Standing Counsel regarding latitude being given to the Tribunal are relatable only in the situation where extension of period of stay is sought. It is not even the case of the respondents that the petitioner was not ready and willing to proceed with the hearing of the appeal. The entire case is built only on interpretation of the provision being mandatory permitting the authorities to initiate action once period of 180 days expired from the date of the order granting stay. As stated hereinbefore such an interpretation is against the plain language of the provision and does not flow from the provision. Such an interpretation is also against the object with which the said provision has been incorporated in the statute. It is necessary to take note of the fact that the decision of the Tribunal on which reliance has been placed as well as subsequent decision of Larger Bench of the Tribunal have been approved by the Hon'ble Apex Court in no uncertain te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The grievance of the petitioner is that despite the order made by the CESTAT staying recovery of duty and penalty amount, an order of attachment (Annexure-D) came to be made on 6th September, 2004. This order was followed by invoking and encashment of Bank Guarantee No. 24/4 for a sum of Rs. 1,00,000/- (Rupees One lac only) vide another order dated 6th September, 2004. 4. Mr. Dhaval Shah, learned Advocate for the petitioner, has stated that reliance placed by the respondents on amended provisions of Section 35C(2A) of the Act with special reference to the Second Proviso is unwarranted and the impugned action is bad in law. According to Mr. Shah, the order staying the recovery having been made prior to 11th May, 2002, the period of 180 days mentioned in the Second Proviso cannot be made applicable to such an order and the provision operates prospectively. In support reliance has been placed on an order dated 13th January, 2005 made by the Hon'ble Supreme Court of India in S.L.P. No. 13792 of 2003 [in case of Commissioner of Customs Central Excise, Ahmedabad v. M/s. Kumar Cotton Mills (P.) Ltd. Anr., 2005 (180) E.L.T. 434 (S.C.)] and cognate matters to point out that the decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decide every appeal within a period of three years from the date of filing. 7. Thus, the scheme is that an appeal is required to be disposed of within a period of three years from the date of filing, but where, stay is granted by the Tribunal, the said period of three years stands curtailed to 180 days from the date of the order granting stay. Though the language employed by the statute appears to be mandatory in terms, considering the object behind the provision it has to be understood to mean as being directory in nature. In other words, disposal of appeal has to be within the specified period, three years or 180 days, where it is possible to do so. What meaning does one ascribe to the phrase where it is possible to do so if the contention of Revenue is required to be upheld. If Second Proviso is read in isolation the interpretation canvassed by Revenue may appear to be correct. But one cannot loose sight of the legal position : a proviso carves out an exception to the main rule. This Court in the case of Indo-Nippon Chemicals Co. Ltd. Anr. v. Union of India Ors., 2002 (49) RLT 642 (Guj.) has laid down : . . . . . The normal function of a proviso is to except something out of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... technical and/or judicial members at a particular station to the quantum and quality of appeals at a particular station. One cannot 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 thinks fit. The said provision confers on CESTAT powers of the widest amplitude in dealing with appeals before it, grants by implication the power of doing all such acts, or employing such means, as are essentially necessary to its execution. The statutory power under the said section carries with it a duty in proper cases to make such orders for staying recovery of demand of duty, etc. pending an appeal before the Tribunal, as will prevent such an appeal, if successful, from being rendered nugatory. Sub-section (2A) of the Act was brought on statute book to ensure disposal of pending appeals within a reasonable time frame and curtail delays. But ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e interim order while delaying the disposal of the proceedings. The observations i.e. the last sentence on which reliance has been placed by the learned Senior Standing Counsel regarding latitude being given to the Tribunal are relatable only in the situation where extension of period of stay is sought. 14. In the facts of the present case, it is not even the case of the respondents that the petitioner was not ready and willing to proceed with the hearing of the appeal. The entire case is built only on interpretation of the provision being mandatory permitting the authorities to initiate action once period of 180 days expired from the date of the order granting stay. As stated hereinbefore such an interpretation is against the plain language of the provision and does not flow from the provision. Such an interpretation is also against the object with which the said provision has been incorporated in the statute. It is necessary to take note of the fact that the decision of the Tribunal on which reliance has been placed as well as subsequent decision of Larger Bench of the Tribunal have been approved by the Hon'ble Apex Court in no uncertain terms. 15. In the result the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
