IPCL Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) The miscellaneous application No. E/M/983/2003 -Mum. in Appeal No. E/3180/2001 -Mum. was filed by the appellant for extension of the order of stay. When the above application came up for consideration before a Bench of two Members at West Zonal Bench, Mumbai it was brought to their notice that there are conflicting decisions on the issue of jurisdiction of this Tribunal granting stay beyond the period of 180 days after incorporation of Sub -section (2A) in Section 35C of the Central Excise Act w.e.f. 11 -5 -2002. The Bench noted that in Kumar Cotton Mills Pvt. Ltd. v. CCE, Ahmedabad, 2002 (146) E.L.T. 438, a two Member Bench of the West Zonal Bench, took the view that even though the period of the order of stay initially passed, would come to an end on expiry of 180 days in view of the amended provisions, jurisdiction of the Tribunal to extend period 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 Pharmaceutical 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 thereon as it thinks fit, confirming, modifying or annulling the decision or order appealed against or may refer the case back to the authority which passed such decision or order with such directions as the Tribunal may think fit, for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary. Following is the provision that is added to Section 35C as Sub -section (2A) w.e.f. 11 -5 -2002 -

(3.) In Kumar Cotton Mills Pvt. Ltd. the Bench took the view that the power to grant stay is part of inherent power of the Tribunal as an appellate authority since there is no specific provision under the Statute enabling the Tribunal to pass an order of stay. In coming to the above conclusion the Bench placed reliance on decision of the Delhi High Court in ITC Ltd. v. UOI, 1983 (12) E.L.T. 1 (Del.) followed by decision of this Tribunal in CCE v. Kama Industries Ltd., 1991 (53) E.L.T. 566. Reliance was also placed on the decision of the Supreme Court in ITO v. M.K. Mohammed Kunhi, 1969 (71) ITR 815 and a decision of the Income Tax Tribunal in Centre for Women's Development Studies v. Deputy Director of Income Tax, 2002 (257) ITR 60. Bench also took the view that for inability of the Tribunal to hear the matter within 180 days a party should not be visited with adverse consequences. The ratio of the decision of the Supreme Court in Rajkumar Dey and Ors. v. Tarapada Dey and Ors., 1987 (4) SCC 398 was relied in support of the above view.