TMI Blog2015 (5) TMI 27X X X X Extracts X X X X X X X X Extracts X X X X ..... fault, the parties shall suffer. No case law is required to support the proposition that an act of Court/Tribunal shall not prejudice a party. - Decided against Revenue. - Central Excise Appeal Defective No. - 107 to 110 of 2015 - - - Dated:- 22-4-2015 - Hon'ble Arun Tandon And Hon'ble Dr. Satish Chandra,JJ. For the Appellant : B. K. S. Raghuvanshi, Sr. S. C. ORDER Above mentioned four Excise Appeals have been filed by the Commissioner of Central Excise, Noida while the connected two writ petitions have been filed by the assessee-L.G. Electronics India (P) Ltd. The department in excise appeals is aggrieved by the order of the Larger Bench of the Central Excise and Service Tax Appellate Tribunal, New Delhi dated 30.09.2014 where-under the Tribunal has held as follows : In the light of the analyses above and following the judgment of the Gujarat High Court in Small Industries Development Bank of India reiterated in Disha Engineers and Sharp Engineers, we answer the reference by holding that even in a case where the period of 365 days has passed from the date of initial grant of stay but the appeal could not be disposed of for reasons not attributabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the issue involved in the aforesaid cases is more or less identical and the language of two sections namely Section 35-C (2A) of the Act, 1944 and Section 254 (2A) of the Act, 1961 are similar, these matters have been clubbed together and are being decided by this common judgment. We have heard Shri B.K.Singh Raghuvanshi, counsel for the Central Excise Department, Shri Ashok Kumar, Advocate for the Income Tax Department, Shri Rupesh Jain and Shri Suyash Agrawal, Advocates on behalf the petitioner-assessee. Counsel for the department submitted before us that in view of the mandatory provisions of Section 35-C (2A) of the Act, 1944/Section 254 (2A) of the 1961, in no case the interim stay order granted in favour of the appellant/assessee can be extended beyond 365 days even where the Tribunal because of reasons not attributable to the assessee has not been able to decide the appeal within 365 days. It is, therefore, submitted that the directions issued by the Tribunal quoted herein above permitting the extension of the interim order till the appeal is decided and further granting liberty to the assessees whose interim order stood vacated because of the expiry of the outer limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has to be some mechanics for deciding the cases where interim order has not been granted on their turn and for cases where interim order has been granted simultaneously in whatever proportion it may be. A solution has to be found to the problem. Filing of Excise Appeal/writ petition of like nature before the High Court must also be brought to an end inasmuch as the substantial question of law which arises in these Excise Appeals/writ petitions must be answered once and for all. It is in this background that we proceed to decide the present bunch of appeals/writ petitions. Section 35-C(2A) of the Central Excise Act, 1944 reads as follows : (2A) 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 on which such appeal is filed. Provided that where an order of stay is made in any proceedings relating to an appeal filed by sub-section (1) of Section 35-B, the Appellate Tribunal shall dispose of the appeal within a period of one hundred and eighty days from the date of such order. Provided further that if such appeal is not disposed of within the period specified in the first proviso, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period allowed under the first proviso or the period or periods extended or allowed under the second proviso, which shall not, in any case, exceed three hundred and sixty-five days, the order of stay shall stand vacated after the expiry of such period or periods, even if the delay in disposing of the appeal is not attributable to the assessee. From a simple reading of the aforesaid Section 35-C(2A) of the Act, 1944, it is apparently clear that the Appellate Tribunal shall hear and decide every appeal within a period of three years from the date when the appeal is filed. However, the proviso to the said section provides that if the Tribunal has granted an interim order in an Appeal, it will decide the appeal within 365 days at the maximum from the date of the order. In absence of decision within 365 days, the stay order shall stand vacated. Same is the language of Section 254 (2A) of the Act, 1961. It cannot be disputed that the intention of the legislature from a simple reading of the sections is that where an interim order has been granted by the Tribunal, the appeal be considered and decided within 180 days at the first instance and in any case within 365 days finally. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , if not due to the fault of any of the parties, but due to the heavy work with the Tribunal, would fall under the category of act of omission . No law can be so unfair as to say that if the Court/Tribunal is at fault, the parties shall suffer. No case law is required to support the proposition that an act of Court/Tribunal shall not prejudice a party. The Apex Court in the case of Sharif-Ud-Din vs. Abdul Gani Lone reported in AIR 1980 SC, 303 has held as follows : In order to find out the true character of the legislature, the Court has to ascertain the object which the provision of law in question is to subserve and its design and the context in which it is enacted. If the object of a law is to be defeated by non-compliance with it, it has to be regarded as mandatory. But when a provision of law relates to the performance of any public duty and the invalidation of any act done is disregard of that provision causes serious prejudice to those for whose benefit it is enacted and at the same time who have no control over the performance of the duty, such provision should be treated as a directory one. Where however, a provision of law prescribes that a certain act has to be d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utory period fixed under the aforesaid provisions and his interim order stands vacated for no fault of his, his right to file a second interim stay application cannot be said to have been taken away or barred. We are of the considered opinion that no interference is required against the order of the Excise Tribunal dated 20.09.2014, insofar as it directs that the interim order granted in favour of the assessee would continue so long as the appeals are not decided nor we find any illegality in the direction of the Excise Tribunal by which it has permitted all such assessees to make a fresh stay application whose stay orders had been vacated only because of the expiry of the period of 180/365 days, as the case may be. In order to avoid filing of such appeals/writ petitions of like nature before this Court in future, we provide that an assessee shall be at liberty to make a fresh interim stay application just before expiry of 365 days or just after expiry of 365 days before the Tribunal concerned. Such interim stay application of the assessee shall be considered by the Tribunal without being prejudiced in any manner with the fact that the earlier stay granted had expired because ..... 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