TMI Blog2014 (7) TMI 201X X X X Extracts X X X X X X X X Extracts X X X X ..... ated grant of power. It is the stay granted in exercise of such inherent power that is subject to the sunset clause enacted in Section 35C(2A) of the 1944 Act. Even where no stay is granted by the Tribunal and mere waiver of pre deposit is ordered under Section 35F, such order of waiver of pre deposit would operate as stay all further proceedings for recovery of the adjudicated liability; since parameters for grant of stay and for waiver of pre deposit are in pari materia. Order dated 9.12.2011, granting waiver of pre deposit of penalty (on noticing that the assessed tax demand had been remitted), is a grant of waiver that would operate during pendency of this appeal and the order of waiver is not subject to the provisions of Section 35C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Superintendent of Central Excise, Range II, Bhiwadi informing the appellant that stay order granted by the Tribunal stood vacated and therefore the appellant should pre deposit the adjudicated liability. 3. Having considered the facts and circumstances and contentions urged on behalf of the Counsel for the appellant and for the respondent/Revenue by Id. D.R. and having duly considered the provisions of Section 35C(2A) of the Central Excise Act, 1944 including first and second proviso thereto, we pass the following the order. 4. Waiver of pre deposit was granted on 21.12.2011. Waiver of pre deposit is statutory discretion conferred on the Tribunal under Section 35F of the Act to grant full or partial waiver of the entire adjudica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made in this behalf by a party and on being satisfied that the delay in disposing of the appeal is not attributable to such party, extend the period of stay to such further period, as it thinks fit, not exceeding 185 days, and in case the appeal is not so disposed of within the total period of 365 days from the date of order referred to in the first proviso, the stay order shall, on expiry of the said period, stand vacated. This proviso is somewhat analogous Article 226 (3) of the Constitution. 6. We find that in numerous cases, officers issue notices for recovery of the entire adjudicated liability, on the ground that the period of 180 days or 365 days , as the case may be, had expired, from the date of grant of an order of stay. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the relevant provisions of the 1944 Act. A provisions of Section 35C(2A) enact a sunset period for operation of an order of stay granted and not for the vitality of an order of waiver of pre deposit. Pre deposit is a condition precedent for entertaining an appeal. This requirement is enjoined by Section 35F of the Central Excise Act, 1944. Pre deposit once order (or waived) will operate for the duration of the appeal and is not subject to sunset period. An order granting stay is however, as earlier noticed, is in exercise of inherent power of the Tribunal, not in exercise of a legislated grant of power. It is the stay granted in exercise of such inherent power that is subject to the sunset clause enacted in Section 35C(2A) of the 1944 Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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