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TMI Blog2004 (6) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... r granting exemption from pre-deposit will be rendered nugatory as the assessee will be compelled to satisfy the demand during dependency of the appeal. It has been always the judicial view that no party should be prejudiced due to action or inaction on the part of the court. On going through the decision rendered by a bench of two members in Kumar Cotton Mills Ltd.[ 2002 (10) TMI 116 - CEGAT, MUMBAI] we find that the Bench taking into consideration the importance of this issue permitted Advocates and Consultants not representing the applicants also to make submissions to assist the Court. A decision rendered after such hearing on the effect of the introduction of sub-section (2A) on the jurisdiction of the Tribunal as above should not have been just brushed aside as one rendered in 'vacuum'. Even if the Bench which heard Themis Pharmaceuticals took a different view, it should have referred the issue for consideration by Larger Bench as judicial decision would demand. Thus, we are inclined to uphold the view taken in Kumar Cotton Mills [ 2002 (10) TMI 116 - CEGAT, MUMBAI] and agree with the view expressed in the reference order on the jurisdiction of the Tribunal to pass in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant. Sub-section (1) of Section 35C provides that the Appellate Tribunal may after giving the parties to the appeal an opportunity of being heard pass such orders thereon as it thinks fit, confirming, modifying or annulling the decision or order appealed against or may refer the case back to the authority which passed such decision or order with such directions as the Tribunal may think fit, for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary. Following is the provision that is added to Section 35C as sub-section (2A) w.e.f. 11-5-2002 - "(2A) 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 eight 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." 3.In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce placed on the decision of the Supreme Court in S.R. Chaudhari v. State of Punjab, 2001 (7) SCC 126 is totally out of context. The issue involved there was one relating to the scope of Article 164 and in particular Article 164(4) of the Constitution. Clause (4) provides that a Minister who for any period of six consecutive months is not a member of the legislature of the State shall at the expiration of that period cease to be a Minister. The issue that came up for consideration was whether a non-member, who fails to get elected during the period of six consecutive months, after he is appointed as a Minister or while a Minister has ceased to be a legislator, be re-appointed as a Minister without being elected to the legislature after the expiry of the period of six consecutive months. The Apex Court after referring to the debate of the Legislative Assembly indicating that non-Members' inclusion in the Cabinet was considered to be a privilege that extends only for six months during which period the Member must get elected otherwise he would cease to be a Minister took the view that the privilege of continuing as a Minister for six months without being an elected member is only one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... art from the proviso to Section 35F, the appellate authority has inherent power of granting interim relief in the exercise of its appellate jurisdiction. This has been so recognized explained by the Supreme Court in the case of Income Tax Officer v. Mohd. Kunhi, 92 ITR 341. We must make it clear that it does not mean that in every case where appeal is filed the Collector (Appeals) or the Tribunal must, as a matter of course, grant interim relief. The guidelines for the grant of interim relief are contained in the proviso to Section 35F, namely, relief will be granted only if there would be undue hardship to the person if he is asked to pay excise duty or penalty. Unless, therefore, it can be shown by the appellant that undue hardship would be caused if he is required to pay the duty or penalty the appellate authorities would be entitled to refrain from granting any interim relief. What is undue hardship would depend upon the facts of each case." In ITO v. M.K. Mohammed Kunhi the Hon'ble Supreme Court observed as follows :- "The argument advanced on behalf of the appellant before us that, in the absence of any express provisions in Sections 254 and 255 of the Act relating to stay of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntext the Hon'ble High Court compared the powers of CEGAT under Section 129B of the Customs Act and powers of ITAT under Section 254(1) of the Income Tax Act. Their Lordship were not considering the power of the Appellate Tribunal to grant stay as an inherent power of an appellate authority when there is no statutory provision for granting stav. It is to be noted that this specific issue was considered by the Delhi High Court in ITC Ltd. v. UOI and the Hon'ble High Court placed reliance on ITO v. M.K. Mohammed Kunhi. We are, therefore of the view that Kumar Cotton Mills was correct in following the decision of Delhi High Court. 9.A Bench of Madras High Court had also occasion to consider the jurisdiction of this Tribunal to grant interim relief in CC v. Madras Electro Castings P. Ltd., 1994 (71) E.L.T. 646. The Court took the view that the Tribunal has jurisdiction to pass such interim order as are necessary in order to aid the main relief sought for in the appeal. Relevant portion of the judgment is quoted below :- In addition to this, it may also be as to whether the"8. Customs, Excise and Gold (Control) Appellate Tribunal has jurisdiction to issue interim orders. It may be point ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts, we are of the considered opinion that sub-section (2A) was inserted in Section 254 to curtail the delays and ensure the disposal of the pending appeals within a reasonable time frame. There is no intention of the Legislature to curtain or withdraw the powers of the Tribunal for granting a stay exceeding a period of six months. Had it been the intention of the Legislature, there would be a specific amendment in the Act to this effect because if the powers of the Tribunal for granting the stay exceeding a period of six months are withdrawn by this amendment, the object of imparting justice by the Tribunal cannot be achieved even in those cases where the assessee has co-operated with the Tribunal to its full extent and the hearing is in progress. We, therefore, are of the considered view that the Tribunal has power to grant a further stay on the expiry of six months of earlier stay if the facts and circumstances so demand." While coming to the above conclusion the Tribunal had taken note of the Explanatory Notes on Clauses of the Finance Bill introducing the amendment. 11.In Themis Pharmaceuticals reference is made to Notes on Clauses of the Finance Bill, 2002 amending Section 35C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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