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2015 (4) TMI 245 - RAJASTHAN HIGH COURT

2015 (4) TMI 245 - RAJASTHAN HIGH COURT - 2015 (322) E.L.T. 39 (Raj.) - Power of Tribunal - Extension of stay - Extension beyond period of 365 days - Whether the Hon'ble CESTAT has erred in granting waiver of pre-deposit of assessed demand in favour of the respondent during pendency of the appeal thereby extending the period of stay beyond 365 days ignoring the recent amendment to Section 35C of the Central Excise Act, 1944 - Held that:- Following decision of Commissioner of Cus. & C.Ex., Ahmeda .....

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istry, is dispensed with. 2.The explanation given by learned counsel appearing for the Department, for condonation of delay, is found good and sufficient. The delay is accordingly condoned. 3.All these Central Excise Appeals have filed under Section 35G of the Central Excise Act, 1944, by the Department, with substantial questions of law, as follows:- Central Excise Appeal No.40/2014: i. Whether the Central Excise Service Tax Appellate Tribunal (CESTAT) was correct in continuing the stay order d .....

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ton Mills P. Ltd. reported in 2005 (180) ELT 434 [Paragraph 6 (SC)]? Central Excise Appeal No.28/2014: i. Whether the Central Excise Service Tax Appellate Tribunal (CESTAT) was correct in continuing the stay order dated 21.9.2012, till further orders, especially when the provisions framed under the Act of 1944 were overlooked? ii. Whether in the facts and circumstances of the case, the Hon'ble Tribunal is correct in overlooking the insertion of third proviso in Section 35C(2A) of the Central .....

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amed under the Act of 1944 were overlooked? ii. Whether in the facts and circumstances of the case, the Hon'ble Tribunal is correct in overlooking the insertion of third proviso in Section 35C(2A) of the Central Excise Act, 1944 vide the Finance Act, 2013 and thereafter by wrongly applying the decision of the Hon'ble Supreme Court pronounced in the case of Commissioner of Customs and Central Excise, Ahmedabad Vs. Kumar Cotton Mills P. Ltd. reported in 2005 (180) ELT 434 [Paragraph 6 (SC) .....

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applying the decision of the Hon'ble Supreme Court pronounced in the case of Commissioner of Customs and Central Excise, Ahmedabad Vs. Kumar Cotton Mills P. Ltd. reported in 2005 (180) ELT 434 [Paragraph 6 (SC)]? Central Excise Appeal No.44/2014: i. Whether the Central Excise Service Tax Appellate Tribunal (CESTAT) was correct in continuing the stay order dated 01.01.2013, till further orders, especially when the rules framed under the Act of 1944 were overlooked? ii. Whether in the facts a .....

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4.2014 (Appeals No.40/2014 & 42/2014), 15.04.2014 (Appeal No.28/2014), 10.07.2014 (Appeal No.41/2014) and 29.04.2014 (Appeal No.44/2014), passed by the Customs, Excise & Service Tax Appellate Tribunal, Principal Bench, New Delhi (for short, 'CESTAT), by which the interim stay orders, as granted, were directed to continue, until further orders, on the ground that the delay in hearing of the appeals beyond 180 days, was for no fault on the part of the appellants, and thus, in view of t .....

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s expeditiously as possible, and preferably within a period of six months. The waiver of pre-deposit, to the extent directed by CESTAT, will be valid, until the final decision of the Appeal. 6.The reasons for making the order, as aforesaid, are given as below:- 5.In all these matters, the question of law raised, is as follows:- Whether the Hon'ble CESTAT has erred in granting waiver of pre-deposit of assessed demand in favour of the respondent during pendency of the appeal thereby extending .....

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assessees for matters which may be completely beyond their control. For example, many of the Tribunals are not constituted and it is not possible for such Tribunals to dispose of matters. Occasionally by reason of other administrative exigencies for which the assessee cannot be held liable, the stay applications are not disposed within the time specified. The reasoning of the Tribunal expressed in the impugned order and as expressed in the Larger Bench matter, namely, IPCL v. Commissioner of Ce .....

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of within the period specified in the first proviso, the Appellate Tribunal may, on an application 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 one hundred and eighty-five days, and in case the appeal is not so disposed of within the total period of three hundred and six-five days from the date of order referred to in the first p .....

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l appearing for the respondent-Department that the question raised in the present case is covered by the judgment of the Allahabad High Court in Commissioner of Cus. & C.Ex., Kanpur Vs. J.P. Transformers, 2014(307) E.L.T. 436(All.), and the judgment of the Karnataka High Court in Commr. Of Income Tax, Bangalore Vs. Ecom Gill Coffee Tranding P. Ltd., 2014(305) E.L.T. 328 (Kar.). In both these cases, the Courts have held that the Appellate Tribunal committed a positive error in consciously ext .....

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hs. 11.We are also informed that in the Finance Act, 2014, with effect from 01.10.2014, Section 35C(2A) has been omitted and that appeals can be filed now for hearing with a deposit of 10% of the demand. 12.Learned counsel appearing for the respondents states that there are certain high value matters, in which any delay in deciding the appeal will affect the interest of the Revenue. He states that there are about 5000 matters pending in CESTAT at New Delhi with only two Benches hearing the matte .....

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Co. Ltd. Vs. Union of India, 2013(290) E.L.T. 362(Kar.), in which an observation was made that the Union of India has failed to set up large number of Tribunals such as CESTAT and if this is done, then there would be no cause for complaint over the non-consideration of the applications for stay, in appeals, by only one Tribunal, presently functioning at Bengalore. 14.It is submitted that only two Benches and one single member is looking after stay matters and hearing of the appeals, arising out .....

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