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CESTAT has power to extend Stay beyond 365 days where delay in disposal of appeal is not attributable to the assessee

Central Excise - By: - Bimal jain - Dated:- 19-8-2015 - Dear Professional Colleagues, We are sharing with you an important judgement of the Hon ble High Court of Delhi in the case of Commissioner of Central Excise, Delhi Vs. Brew Force Machine Pvt. Ltd [2015 (7) TMI 753 - DELHI HIGH COURT] on the following issue: Issue: Whether the CESTAT is empowered to grant or extend Stay of recovery of demand beyond 365 days from the date when the Stay Order was initially passed, notwithstanding that the del .....

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if the assessee was not at fault. Third proviso to Section 254(2A) of the IT Act was substituted by the Finance Act, 2008 w.e.f. October 1, 2008 to provide as under: Provided also that if such appeal is not so disposed of within the 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, eve .....

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ision of the Maruti Case while interpreting Section 35C(2A) of the Central Excise Act, 1944 ( the Excise Act ), holding that an identically phrased provision in the IT Act was interpreted in Maruti Case to hold that the Income Tax Appellate Tribunal did not have power and jurisdiction to extend an interim stay order beyond 365 days, even if the assessee was not at fault. Third proviso to Section 35C(2A) of the Excise Act reads as under: Provided also that where such appeal is not disposed of wit .....

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rst proviso, the stay order shall, on the expiry of the said period, stand vacated. However, a Division Bench of the Hon ble High Court of Delhi in the case of Commissioner of Central Excise, Delhi Vs. Brew Force Machine Pvt. Ltd. [2015 (7) TMI 753 - DELHI HIGH COURT], prima facie, felt that the observations in Haldiram Case may not be correct and appropriate as Section 35C(2A) of the Excise Act is not identically worded and parimateria to the third proviso to Section 254(2A) of the IT Act, as s .....

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nd not incorporated in the Excise Act. Thus, the bar and prohibition created by enactment of the Finance Act, 2008 to the third proviso to Section 254(2A) of the IT Act, would not be applicable to appeals preferred under Section 35C(2A) of the Excise Act; · The ratio and decision in the case of Maruti Case, therefore, would not be applicable to CESTAT while dealing with an application for Stay or their power and jurisdiction to grant Stay beyond 365 days, when the assessee is not responsi .....

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