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TMI Blog2016 (5) TMI 47X X X X Extracts X X X X X X X X Extracts X X X X ..... rder. In the said background it was his submission that the appeal still has not been decided for no fault of the assessee. Inviting attention to Annexure-8 to the stay petition filed it was submitted that on each of the dates when the appeal came up for hearing it was adjourned on the request of the Department. Accordingly it was his prayer that the stay may be extended for a period of six months as whether the Revenue would be ready to argue on the next date or not could not be ascertained. 3. The Revenue represented by Ms. Anima Barnwal, Sr. Dr submitted that since the appeal as per record is listed for hearing on 23/03/2016, in the circumstances the stay may be extended only upto the said date. The submission was opposed by the Ld.AR. The Ld. Sr. DR was required to address whether she had any instructions on the Revenue's position for the said date since as per record barring the one occasion when the appeal was adjourned for want of time on each of the other dates the appeal has been adjourned on the written request of the Revenue. The Ld. Sr. DR submitted that she was not in a position to state whether on 23.03.2016 the Department would be ready to argue the appeal or not. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, even if the delay in disposing of the appeal is not attributable to the assessee." 4.1. A plain reading of the same shows that the Tribunal is vested with the power to grant stay initially for a period of six months in terms of the first proviso to sub-section (2A) of section 254. The second proviso it is seen on an application moved by the assessee empowers the Tribunal, on being satisfied that the delay in disposing is not attributable to the assessee to extend stay for a further period of another six months. The third proviso which curtailed the powers of the ITAT to grant stay beyond a period of 365 days came up for consideration before the Jurisdictional High Court in Pepsi Foods Pvt.Ltd.(cited supra). The Jurisdictional High Court considering the decision rendered in the case of Maruti Suzuki India [2014] 44 taxman.com.166 (Del.) held that the Division Bench of the High Court in Maruti Suzuki's case was not called upon to examine the Constitutional validity of the third proviso to Section 254(2A) of the said Act and observing that the said issue had been left open proceeded to examine the same. Examining the amendment carried out by the Finance Act, 2008 in the third pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay beyond 365 days in deserving cases. The writ petitions are allowed as above. (emphasis provided) 4.2. Thus on considering the judicial precedent, we find that there is no legal impediment to the Tribunal to extend stay for a period beyond 365 days in deserving cases. Considering the facts of the present case, we find that after the order dated 15.09.2015 in S.A.No.457/Del/2015 the ITA No.764/Del/2015 came up for hearing on six different dates i.e. 28.09.2015; 15.10.2015; 22.12.2015; 12.01.2016; 04.02.2016; and 23.02.2016. On considering the order sheets of the respective dates, we find that adjournment on 23.02.2016 resulted on account of the fact that the Bench was not functional on the said date. On 15.10.2015 the appeal was adjourned for want of time. On the remaining four occasions i.e 28.09.2015; 22.12.2015; 12.10.2015; and 04.02.2016 it was adjourned on the request of the Department. In the aforesaid peculiar facts and circumstances of the case, we find that the adjournment granted and delay in disposal of the appeal cannot be said to be attributable to the assessee. Accordingly finding ourselves satisfied with the conduct of the assessee who is found to have remained p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f pre-deposit at the stage of an appeal pending before the Central Excise Service Tax Appellate Tribunal. The provision indicated that the waiver would stand vacated after 180 days. In that context, the question arose, as to whether the second proviso to sub-section (2A) of section 35C was directory and that the Tribunal, in appropriate circumstances, could extend the period of stay beyond 180 days. While considering the said question, the Punjab and Haryana High Court held as under (page 117 of 22 GSTR) : "Though the right of appeal is a creation of Statute and it can be exercised only subject to the conditions specified therein, but the conditions specified have to be in relation to the assessee as some thing which is required to be complied with by the assessee. But where the assessee has no control over the functioning of the Tribunal, then the provision of vacation of stay cannot be sustained. The assessee having preferred appeal and that Tribunal being satisfied that condition for dispensing with the pre-deposit of duty demanded and penalty levied is made out, is compelled to pay the duty demanded and penalty levied, if the appeal is not decided within 180 days. The ass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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