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2014 (5) TMI 568 - HC - Central ExciseWaiver of pre deposit - maintainability of writ petition before the High Court against the decision for refusal to grant stay by the commissioner (appeals) - Held that:- A careful scrutiny of the provisions of Section 35-B which provides for an appeal to the Appellate Tribunal against the orders of the Commissioner (Appeals) and Section 35-G which provides for a remedy of appeal to the High Court against the orders of CESTAT would show that both sections are not in pari materials. The provisions of Section 35-Bvirtually list out the orders against which an appeal would lie to the Appellate Tribunal. An order passed under Section 35-F is not included as one of the order under Section 35-B(1). The section also does not use the expression “any” or “every order”. On the contrary, Section 35-G (1) uses the expression “every order”. It is a fundamental principle of law that statutory authorities derive powers of appeal or revision, only in terms of statutes. If the statutes do not clearly confer power of appeal or revision, they cannot be conferred through interpretation. Hence, the objection with regard to maintainability is overruled. The CESTAT granted waiver of 100% and also granted stay. As against the 3 rd order, in view of the amount involved, the petitioner had to go before the Commissioner (Appeals). Therefore, the Commissioner (Appeals) ought to have followed the precedents provided by the Tribunal. When the provisions in respect of which duty is levied are one and the same and when the CESTAT has granted absolute stay without any condition in respect of two Orders-in-Original, it is not fair for the Commissioner (Appeals) to impose a condition when the third case comes up. - Decided in favour of assessee.
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