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TMI Blog2013 (4) TMI 206X X X X Extracts X X X X X X X X Extracts X X X X ..... e Stay Order dtd . 11.05.2012 stands vacated, after six months. While this can not be the ground for early hearing, since the Stay Order dtd.11.05.2012 passed by the Tribunal, has in clear terms stayed the recovery and since there is no evidence that delay in disposal of appeal is on account of dilatory tactics adopted by the Appellant, it would not be correct for the Department to initiate coercive action for recovery. On the question as to whether on expiry of six months from the date of stay order, the Appellant is required to file an application for extension of stay even if there is no change in circumstances and the delay beyond six months in disposal of appeal is not attributable to him, Hon'ble Gujrat High Court in its judgment in c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall stand vacated. The main provision states that the appellate Tribunal shall, where it is possible to do so hear and decide every appeal within a period of three years from the date of filing. 7. Thus, the scheme is that an appeal is required to be disposed of within a period of three years from the date of filing, but where, stay is granted by the Tribunal, the said period of three years stands curtailed to 180 days from the date of the order granting stay. Though the language employed by the statute appears to be mandatory in terms, considering the object behind the provision it has to be understood to mean as being directory in nature. In other words, disposal of appeal has to be within the specified period, three years ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by Lord Herschel, 'of course' a proviso may be used to guide you in the selection of one or other of two possible constructions of the words to be found in the enactment, and show when there is doubt about its scope, when it may reasonably admit of doubt as to having this scope or that, which is the proper view to take of it', Mudholkar , J. in Hindustan Ideal Insurance Co. Ltd. vs. Life Insurance Corporation Ltd. reported in AIR 1963 SC 1087 started the rule thus- "there is no doubt that where the main provision is clear, its effect can not be cut down by the proviso. But where it is not clear, the proviso, which can not be presumed to be a surplus age, can properly be looked into ascertain the meaning and scope of the main provision." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 delays. But from this it is not possible to infer a legislative intent to curtail/withdraw powers of the Tribunal t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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