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2014 DIGILAW 3151 (ALL)

Commissioner Central Excise Kanpur v. Shri Arpit Jain Director

2014-10-15

D.Y.CHANDRACHUD, P.K.S.BAGHEL

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JUDGMENT Pradeep Kumar Singh Baghel, J. The appeal by the Revenue arises from an order of the Customs, Excise & Service Tax Appellate Tribunal (CESTAT) dated 10 March 2014 on an application for waiver of pre-deposit. The Tribunal has recorded that the assessee had deposited an amount of Rs.76,970/- out of the total confirmed demand of Rs.1.20 lacs along with interest and 25% penalty. 2. The ground which has been formulated by the Revenue in support of the appeal and which is pressed, is as follows: - “(1) Whether the Hon’ble CESTAT erred in granting waiver of pre-deposit of assessed demand in favour of the respondents during pendency of the appeal thereby extending the period of stay beyond 365 days ignoring the recent amendment to section 35-C (2A) of the Central Excise Act, 1944, including third proviso made through enactment of financial bill 2013, wherein Hon’ble CESTAT bound to specify the time limit of stay subject to not exceeding 180 days in first time and 185 days in second time granting extension but not exceed total time 365 days.” 3. There is a fundamental fallacy in the submission of the Revenue. Sub-section (2A) of Section 35-C of the Act requires the Tribunal to endeavour to dispose of the appeal within the stipulated period as set out therein. The first proviso provides that where an order of stay has been passed, the Tribunal shall dispose of the appeal within a period of 180 days from the date of the order. Under the second proviso, if the appeal is not disposed of within the period specified in the first proviso, the stay order shall stand vacated. Hence, the provisions which are contained in the second proviso to Section 35-C (2A) of the Act operate as a matter of law. In that view of the matter, it cannot be held that the Tribunal in passing the order of stay has acted in violation of the provisions of the second proviso to Section 35-C (2A) of the Act. 4. The appeal by the Revenue would hence not give rise to any substantial questions of law. However, we direct the Tribunal to dispose of the appeal expeditiously having due regard to the mandate which is contained in Section 35-C (2A) of the Act. Subject to the aforesaid, the appeal is dismissed. There shall be no order as to costs.