TMI Blog2023 (10) TMI 869X X X X Extracts X X X X X X X X Extracts X X X X ..... - SC ORDER] , wherein the Hon ble High Court held that The condition of vacation of stay for the inability of the Tribunal to decide the appeal is burdening the assessee for no fault of his. Such a condition is onerous and renders the right of appeal as illusory. An order passed by a judicial forum is sought to be annulled for no fault of assessee. Thus, there are no arrears against the Respondent so as to appropriate the refund. Hence, the appeal filed by the department has become infructuous and is accordingly dismissed. - HON BLE MR. R. MURALIDHAR MEMBER (JUDICIAL) And HON BLE MR. K. ANPAZHAKAN MEMBER (TECHNICAL) Shri S. Mukhopadhyay, Authorized Representative for the Appellant Shri Rahul Tangri, Advocate for the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an 180 days. The Respondent submitted that in the matter of Appeal No. E/218/2009, the CESTAT Kolkata had granted a Stay Order vide S-53/Kol/10 dated 08.02.2010. Therefore, the underlying OIO appropriating the refund sanctioned against a demand stayed by the Tribunal is wrong. The Respondent further submitted that the said Appeal No. E/218/2009 has been finally decided in favour of the Respondent by the CESTAT Kolkata vide Final Order No. FO/A/75171/2019 dated 11.01.2019, reported at 2019 (2) TMI 1027 - CESTAT Kolkata. Since the said Appeal No. E/218/2009 has been finally settled in favour of the Respondent by this Tribunal, there are no arrears against the Respondent so as to appropriate the refund .Hence, the instant appeal of the departm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of stay on the expiry of 180 days, has to be read down to mean that after 180 days the Revenue has a right to bring to the notice of the Tribunal the conduct of the assessee in delay or avoiding the decision of appeal, so as to warrant an order of vacation of stay. If the provision is not read down in the manner mentioned above, such condition suffers from illegality rendering the right of appeal as redundant. .. 54. Consequently, the second proviso in sub-section (2A) of Section 35C is ordered to be read down to mean that after 180 days, the Revenue has a right to seek vacation of stay on proof of the fact that the assessee is the one, who is defaulted or taken steps to delay the ultimate decision. 4. We observe that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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