TMI Blog2007 (11) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicants. We have heard learned counsel for the applicants and learned SDR for the respondents. It is submitted by learned counsel that, where, in a pending appeal of an assessee, the stay order passed by the Tribunal under Section 35F of the Central Excise Act is in force in terms of the Hon'ble Gujarat High Court's judgment in the case of Polyfill Sacks v. UOI - 2005 (183) E.L.T. 344 (Guj.), it is not open to the Revenue to issue demand notice during the pendency of the appeal. In this connection, learned counsel have referred extensively to the judgment of the Hon'ble High Court. Learned counsel for the appellant in Appeal No. E/338/2004 has also brought to our notice an order passed by a learned Member of: the Tribunal sitting singl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an eventuality. 12. For the period subsequent to the insertion of the Second Proviso the Tribunal should, as a matter of practice, specify the time period during which the stay shall operate after exercising its judicial discretion. The period may be limited or could be co-terminous with disposal of appeal - on consideration of all relevant factors in a given fact situation. 13. Therefore, held by the Apex Court in case of Commissioner of Customs Central Excise, Ahmedabad v. Kumar Cotton Mills (P) Ltd. (supra) an assessee cannot be punished for matters which may be completely beyond the control of the assessee. The situations set out by the Apex Court in its order are only illustrative and not exhaustive. The object of the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l of the appeals. Further, we also make it clear that, in the event of any of the aforesaid demand notices being enforced or any fresh demand notice being issued during the pendency of the appeal concerned, the same will be treated as contempt of this Tribunal warranting appropriate proceedings against the departmental authorities concerned. For the record, we dispose of the applications. 4. The Registry is directed to issue certified copies of this order to all the Chief Commissioners of Central Excise having jurisdiction over the Commissionerates of Central Excise in the State of Tamilnadu and the Union Territory of Puducherry, for information and necessary action. (Dictated and pronounced in open Court) - - TaxTMI - TMITax - Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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