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2015 (8) TMI 696 - HC - Central ExcisePower of Tribunal to extend stay beyond the period of 365 days - Application of Maruti Suzuki (India) Ltd. [2014 (2) TMI 1037 - DELHI HIGH COURT] delivered in case of Income tax on Section 35C(2A) of Central Excise - Held that:- legislature had by Finance Act, 2008 inserted the words 'even if the delay in disposing of the appeal is not attributable to the assessee' in the third proviso to Section 254 (2A) of the IT Act, but no such amendment or substitution was made in Section 35C (2A) of the CE Act. The ratio and decision in the case of Maruti Suzuki (India) Ltd., therefore, would not be applicable to CEGAT while dealing with an application for stay or their power and jurisdiction to grant stay beyond 365 days, when the assessee is not responsible, under Section 35C (2A) of the CE Act. Powers of the tribunal u/s 254 (2A) of the IT Act and Powers of the tribunal u/s 35C (2A) of the CE Act regarding extension of stay order are not at par. - Moreover the issue of constitutional validity of Section 254(2A) was not considered in Maruti Suzuki (India) Ltd. [2014 (2) TMI 1037 - DELHI HIGH COURT] - This court has struck down the provisions of Section 254(2A) on ground of constitutional validity in the case of PEPSI FOODS PVT. LTD [2015 (5) TMI 655 - DELHI HIGH COURT]. - Means thereby, the tribunal has power to grant extension of stay order. Therefore, we are unable to agree with the reasoning of the Division Bench of this Court in Haldiram India Pvt. Ltd. [2015 (7) TMI 720 - DELHI HIGH COURT] observing that the ratio of the aforesaid decision in Maruti Suzuki (India) Ltd. would apply even to Section 35C(2A) of the CE Act. The decision of the Division Bench in Haldiram India Pvt. Ltd. is hereby overruled. - Decided in favour of assessee.
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