9911796707
TMI Blog2005 (2) TMI 148X X X X Extracts X X X X X X X X Extracts X X X X ..... titution of India seeking a writ of mandamus for quashing the order of attachment of goods dated 6th September, 2004 and action of respondent No. 3 of invoking and encashing Bank Guarantee No. 24/4. A further consequential relief seeking restitution of the position as prevailing before the encashment is also sought. The petitioner had preferred appeal in accordance with provisions of the Central Excise Act, 1944 (the Act) before the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) accompanied by an application for stay of demand. After hearing the parties on 21st May, 1996 an order came to be made by the CESTAT: for the purpose securing the interest of revenue the appellant was directed to furnish a Bank Guarantee in the sum of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . & Anr., 2005 (180) E.L.T. 434 (S.C.)] and cognate matters to point out that the decision in case of Kumar Cotton Mills Pvt. Ltd. v. Commissioner of Customs & Central Excise, Ahmedabad-I, 2002 (146) E.L.T. 438 (Tribunal - Mumbai) stands approved. 5. Mr. Malkan, learned Senior Standing Counsel appearing on behalf of the respondent-department, submitted that it was bounden duty of the petitioner to seek extension of stay from the Tribunal once a statutory provision had been incorporated and the petitioner having failed to do so, the respondent authorities were well within their rights in initiating action for recovery of outstanding dues because on expiry of the statutory period prescribed in Second Proviso to Section 35C(2A) of the Act the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such appeal is not disposed of within the period specified in the First Proviso, on the expiry of the said period, the stay order shall stand vacated. The main provision states that 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 of filing. 7. Thus, the scheme is that an appeal is required to be disposed of within a period of three years from the date of filing, but where, stay is granted by the Tribunal, the said period of three years stands curtailed to 180 days from the date of the order granting stay. Though the language employed by the statute appears to be mandatory in terms, considering the object behind the provision it has to be understood to me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e you in the selection of one or other of two possible constructions of the words to be found in the enactment, and show when there is doubt about its scope, when it may reasonably admit of doubt as to having this scope or that, which is the proper view to take of it', Mudholkar, J. in Hindustan Ideal Insurance Co. Ltd. v. Life Insurance Corporation Ltd. reported in AIR 1963 SC 1087 started the rule thus - "there is no doubt that where the main provision is clear, its effect cannot be cut down by the proviso. But where it is not clear, the proviso, which cannot be presumed to be a surplus age, can properly be looked into to ascertain the meaning and scope of the main provision." Since the natural presumption is that but for the proviso, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling with appeals before it, grants by implication the power of doing all such acts, or employing such means, as are essentially necessary to its execution. The statutory power under the said section carries with it a duty in proper cases to make such orders for staying recovery of demand of duty, etc. pending an appeal before the Tribunal, as will prevent such an appeal, if successful, from being rendered nugatory. Sub-section (2A) of the Act was brought on statute book to ensure disposal of pending appeals within a reasonable time frame and curtail delays. But from this it is not possible to infer a legislative intent to curtail/withdraw powers of the Tribunal to grant stay in appropriate cases. It is also not possible to infer any curtai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er exercising its judicial discretion. The period may be limited or could be co-terminous with disposal of appeal - on consideration of all relevant factors in a given fact situation. 13. Therefore, held by the Apex Court in case of Commissioner of Customs & Central Excise, Ahmedabad v. Kumar Cotton Mills (P) Ltd. (supra) an assessee cannot be punished for matters which may be completely beyond the control of the assessee. The situations set out by the Apex Court in its order are only illustrative and not exhaustive. The object of the provision is expressed by the Apex Court to be for the purpose of curbing the dilatory tactics of assessees, who having obtained an interim order in their favour, seek to continue the interim order while dela ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
