By TIOL News Service

NEW DELHI, SEP 06, 2015: A Miscellaneous Application was filed by the appellant seeking extension of stay granted by the Tribunal on the ground that the Revenue is insisting for recovery.

The AR submitted that with effect from 06.08.2014 Section 35C(2A) of the Central Excise Act, 1944, has been abolished and, therefore, the Tribunal does not have any power to grant extension of stay.

The Bench observed that the power to grant stay has not been expressly provided in the Statute but the same is an inherent power as held in the case of Shri Ram Narayan Dyg. & Ptg. Mills Vs. CCE, Surat-I - 2009-TIOL-2413-CESTAT-AHM and recognised by the Supreme Court in Baldev Raj Ram Murthi - 2005-TIOL-931-CESTAT-DEL (para 6 refers).

The Tribunal also noted -

From the foregoing it is evident that the power to grant stay although not expressly provided in the Statute (either before 06.08.2014 or with effect therefrom) it was and continues to be an inherent power of the Tribunal.

After extracting section 35C(2A), the Bench observed -

"Perusal of above-quoted sub-section clearly reveals that the said sub-section did not grant any power to grant stay; it only sought to put fetters on the power of the Tribunal to grant stay beyond a certain period. Consequently its abolition can only have an effect that fetters which the said sub-section sought to place on the Tribunal with regard to the duration beyond which CESTAT could not grant stay no longer exist. In other words, with the abolition of Section 35C(2A) ibid with effect from 06.08.2014, the power of the Tribunal with regard to grant of stay in no way got attenuated. Even during the existence of sub-section 35C(2A) of the Act (i.e. prior to 06.08.2014), the Tribunal in the case of Halidram India Pvt. Ltd. Vs. CCE, Delhi [2014 (309) ELT (Tri. - LB)] - 2014-TIOL-1965-CESTAT-DEL-LB held that the Tribunal had power to extend the stay beyond the period of 365 days in cases where appellant was ready and willing to pursue the appeal, but the Tribunal owing to the older pendency was unable to take up the appeal. In the light of the foregoing, we reject the contention of ld. Departmental Representative and, having regard to the fact that the delay in taking up these appeals is not attributable to the appellants, extend the stay granted earlier to operate during the pendency thereof."

In passing - abolition:

Actually, this is what the Finance Act, 2014 [enacted on 06.08.2014] did to the section -

Amendment of section 35C.

103 . In the Central Excise Act, in section 35C, in sub-section (2A ), the first, second and third proviso shall be omitted.

Also see 2015-TIOL-1239-CESTAT-DEL, 2015-TIOL-1873-HC-DEL-CX-LB & 2015-TIOL-1974-HC-ALL-ST.

(See 2015-TIOL-1876-CESTAT-DEL)