TMI Blog2004 (6) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... of stay by passing fresh orders is not affected. The Bench also noted a Larger Bench of this Tribunal had exercised such power and extended the stay beyond the period of 180 days in Himalaya International Ltd. v. CCE, 2003 (56) RLT 610. Even though the referring Bench agreed with the view taken in Kumar Cotton Mills Pvt. Ltd., it referred the matter for consideration by the Larger Bench as it was noticed that a different view has been taken by another Bench of West Zonal Bench in Themis Pharmaceuticals v. CCE, Mumbai, 2003 (157) E.L.T. 569. We, have therefore to consider the conflicting views expressed by two Benches of Co-ordinate jurisdiction. 2.Section 35B of the Central Excise Act, 1944 provides for an appeal before the Tribunal. Section 35F mandates pre-deposit of the duty or penalty levied against which appeal is filed. The proviso to Section 35F provides that the Tribunal may dispense with such deposit if it is of the opinion that deposit of duty demand and penalty would cause undue hardship to the appellant. Sub-section (1) of Section 35C provides that the Appellate Tribunal may after giving the parties to the appeal an opportunity of being heard pass such orders thereo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is that the orders of stay which came up for consideration before the Bench in Kumar Cotton Mills Pvt. Ltd. were all passed before insertion of sub-section (2A) of 35C and therefore, has no relevance for considering the effect of sub-section 2A. Reliance placed by the parties on Himalaya International was rejected on the ground that it is not a reasoned order. Relying on a decision of the Orissa High Court in CCE C v. Golden Hind Shipping (India) Pvt. Ltd., 1993 (68) E.L.T. 739 (Ori.) the Bench declined to accept the contention raised by the assessee on the basis of the ratio of the decision in ITO Ltd. v. M.K. Mohammed Kunhi. But it is relevant to note that even though Kumar Cotton Mills had relied on a direct decision of the Delhi High Court in ITC v. UOI regarding the inherent power of this Tribunal to grant stay while exercising jurisdiction under Section 35C, no reference is seen to the above decision in Themis Pharmaceuticals. 5.With great respect to the learned Members of the Bench we are constrained to observe that reliance placed on the decision of the Supreme Court in S.R. Chaudhari v. State of Punjab, 2001 (7) SCC 126 is totally out of context. The issue involved the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for Women's Development Studies. The inherent jurisdiction of the Tribunal to grant interim relief so as to make the ultimate relief effective cannot be curtailed indirectly by sub-section (2A). At the end of the period of 180 days when the appellant makes an application for extension of the stay the Tribunal can always consider whether there is any change in the circumstances which would justify extension or modification of the stay. The Revenue gets an opportunity to bring to the notice of the Tribunal such changed circumstances e.g. a binding decision on the issue in its favour. 7.One of the decisions relied on in Kumar Cotton Mills is the decision of Delhi High Court in ITC v. UOI. In this case the issue of jurisdiction of this Tribunal to grant an order of stay was specifically considered. The High Court took the view that apart from the proviso to Section 35F as an appellate authority the Tribunal has inherent power to grant relief in exercise of its appellate jurisdiction. Relevant portion of the judgment is quoted below :- "Apart from the proviso to Section 35F, the appellate authority has inherent power of granting interim relief in the exercise of its appellate juris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssible amplitude must carry with them by necessary implication all powers and duties incidental and necessary to make the exercise of those powers fully effective." 8.In Themis Pharmaceuticals the Bench took the view that the ratio of the decision in ITO v. M.K. Mohammed Kunhi will not be applicable while considering the issue of jurisdiction of this Tribunal in granting stay. In coming to the above conclusion reliance was placed on a decision of the Orissa High Court in CCE C v. Golden Hind Shipping (India) Pvt. Ltd., 1993 (68) E.L.T. 739 (Ori.). We will now examine the decision of the Orissa High Court. In the above case the issue that came up for consideration was whether CEGAT had the power to direct the petitioner to pay a sum of Rs. 5 lakhs as compensation to the Opposite party No. 1 in exercise of its powers under Section 129B(1) of the Customs Act, 1962 and pass another order enhancing the compensation to Rs. 20 lakhs through amendment of the said order in exercise of its power under Section 129B(2) of the Customs Act. It is in this context the Hon'ble High Court compared the powers of CEGAT under Section 129B of the Customs Act and powers of ITAT under Section 254(1) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of the CEGAT to pass such interim orders as are necessary for the purpose of ensuring that the main relief sought in the appeal is available to the party at the end of the proceeding. The fact that Section 129E only provides for relieving the appellant from the undue hardship that would be caused to him in depositing the duty and interest as demanded or penalty as levied, does not in any way take away the inherent power of the Appellate Tribunal to pass such interim orders as are necessary. This is only re-stated in Rule 41 of the Customs, Excise and Gold (Control) Appellate Tribunal (Procedure) Rules, 1982." 10.Income Tax Appellate Tribunal had occasion to consider an identical issue relating to the power of the Tribunal to grant further stay after the expiry of six months since passing the first order of stay, in Centre for Women's Development Studies v. Deputy Director of Income Tax. The relevant portion from the above order reads as follows :- "On a careful perusal of the relevant new provisions in the law and aforesaid judicial pronouncements, we are of the considered opinion that sub-section (2A) was inserted in Section 254 to curtail the delays and ensure the dispo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eposit will be rendered nugatory as the assessee will be compelled to satisfy the demand during dependency of the appeal. It has been always the judicial view that no party should be prejudiced due to action or inaction on the part of the court (Rajkumar Dey Others v. Tarapada Dey, 1987 (4) SCC 398). 13.On going through the decision rendered by a bench of two members in Kumar Cotton Mills Ltd. we find that the Bench taking into consideration the importance of this issue permitted Advocates and Consultants not representing the applicants also to make submissions to assist the Court. A decision rendered after such hearing on the effect of the introduction of sub-section (2A) on the jurisdiction of the Tribunal as above should not have been just brushed aside as one rendered in 'vacuum'. Even if the Bench which heard Themis Pharmaceuticals took a different view, it should have referred the issue for consideration by Larger Bench as judicial decision would demand. 14.In the light of the above discussion, we are inclined to uphold the view taken in Kumar Cotton Mills and agree with the view expressed in the reference order on the jurisdiction of the Tribunal to pass interim order. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
