TMI Blog2013 (8) TMI 709X X X X Extracts X X X X X X X X Extracts X X X X ..... - CESTAT, NEW DELHI]. Interpretation of Provision – Waiver of Pre-deposit - The interpretation placed by the Supreme Court in Kumar Cotton Mills Pvt. Ltd. [2005 (1) TMI 114 - SUPREME COURT OF INDIA] on the 2nd proviso to Section 35C(2A) of 1944 Act was a fortiori applicable to the proviso introduced into the provision by the Finance Act, 2013 - Since the present appeal could not be disposed of within 365 days, for no fault of the assesse, and a prima facie case in favour the assesse was recorded by the earlier order- the assesse should be entitled to waiver of pre-deposit of the assessed demand, during pendency of the appeal – Stay granted. - Appeal No.959 of 2011 - Misc. Order No. ST/57882/2013-CU(DB) - Dated:- 3-6-2013 - Mr. G. Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing waiver of the pre-deposit amount . 4. Section 35C of the 1944 Act sets out generic powers of this Tribunal. Section 35C(2A) is not per se and expressly made applicable to limit the duration of wavier of pre-deposit or stay granted appeals presented to this Tribunal under provisions of the Act qua Section 83 of the Act. It is however contended on behalf of Revenue that in the light of the provisions of Section 86(7) which provide that subject to the provisions of this Chapter, in hearing the appeals and making orders under this section (86) of the Finance Act, the Appellate Tribunal shall exercise the same powers and follow same procedure as it exercises and follows in hearing appeals and making orders under the Central Excise Act, 194 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) ELT 434 (SC). The Supreme Court considered the effect of the 2nd proviso to Section 35C(2A) of the 1944 Act. Para 6 of the judgment reads: 6. The sub-section which was introduced in terrorem cannot be construed as punishing the assessees for matters which may be completely beyond their control. For example, many of the Tribunals are not constituted and it is not possible for such Tribunals to dispose of matters. Occasionally by reason of other administrative exigencies for which the assessee cannot be held liable, the stay applications are not disposed within the time specified. The reasoning of the Tribunal expressed in the impugned order and as expressed in the Larger Bench matter, namely, IPCL v. Commissioner of Central Excise, Va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid submission of the ld. A.R. for the respondent-Revenue. Kumar Cotton Mills Pvt. Ltd. (supra) had considered a similar provision which enjoined eclipse of an order of stay passed by the Tribunal, wherever the appeal could not be disposed of within 180 days from the date of such order. The relevant provision was characterized as in terrorem, which would deprive an assessee of the benefit of interim relief granted by judicial/quasi-judicial authority. The Apex Court confirmed the decision of the Larger Bench of the Tribunal in IPCL vs. Commissioner reported in 2004 (189) ELT 267 and observed that where the appeal could not be disposed of for no fault of the assessee or for reason not attributable to the assessee, provisions of Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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