Commissioner vs Adani Gas Ltd.

Mukesh R. Shah, J.—Feeling aggrieved and dissatisfied with the impugned order passed by the learned Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench, Ahmedabad dated 17/12/2013 in Application No.ST/MA/ (Extn)/13644/2013 in Appeal No.ST/422/2011, by which the learned Appellate Tribunal has extended the stay granted earlier beyond the total period of 365 days from the date of grant of initial stay, the appellant has preferred the present Tax Appeal with the following proposed substantial questions of law :

"(1) Whether in the facts and the circumstances of the case, the Ld. Tribunal is justified in the eye of law, in passing the impugned Order No.M/15995-16022/2013 dated 17/12/2013 in Application No.ST/MA/(Extn)/13644/2013 in Appeal No.ST/422/2011, extending the stay beyond the period of 365 days, in violation of the statutory provisions contained in Section 35C(2A) of the Central Excise Act, 1944?

(2) Whether even if it is held that the Ld. CESTAT can extend the stay granted earlier beyond the total period of 365 days, the Ld. CESTAT is required to pass a speaking order / reasoned order considering 3rd proviso to Section 35C(2A) of the Central Excise Act, 1944?

By our earlier order dated 9/7/2014, Notice for final disposal has been issued. Heard the learned advocates appearing on behalf of the respective parties.

The issues involved in the present appeal and the substantial questions of law raised in the present appeal are as such not res-integra in view of the decision of this Court dated 9/7/2014 rendered in Tax Appeal No. 341 of 2014 and other allied Tax Appeals.

While answering the same questions which are involved in the present appeals, by judgement and order in Tax Appeal No. 341 of 2014 and other allied Tax Appeals, this Court has observed and held as under :

"6. In view of the above and for the reasons stated above, question No. 1 is answered against the revenue and in favour of the assessee and it is held that in case and having satisfied that delay in not disposing of the appeal within 365 days (total) from the date of grant of initial stay is not attributable to the appellant / assessee in whose favour stay has been granted and that the Appellate Tribunal is satisfied that such appellant / assessee has fully cooperated in early disposal of the appeal and/or has not indulged into any delay tactics and/or has not taken any undue advantage, the learned Appellate Tribunal may, by passing a speaking order as observed hereinabove, extend stay even beyond the total period of 365 days from the date of grant of initial stay. However, as observed by the Hon''ble Supreme Court in the case of Kumar Cotton Mills Pvt. Ltd. (supra), it should not be construed that any latitude is given to the Appellate Tribunal to extend the period of stay except on good cause and if the Appellate Tribunal is satisfied that the matter could not be heard and disposed of by reason of the fault of the Appellate Tribunal for the reasons not attributable to the assessee. It also may not be construed that the Appellate Tribunal can extend stay indefinitely. On expiry of every 180 days the concerned assessee / appellant is required to submit an appropriate application before the learned Appellate Tribunal to extend the stay granted earlier and the Appellate Tribunal may extend the stay for a further period but not beyond 180 days at a stretch and on arriving at the subjective satisfaction, as stated hereinabove, the Appellate Tribunal may extend the stay even beyond 365 days from the date of grant of initial stay and even thereafter. Meaning thereby after 180 days, the Appellate Tribunal is required to review the situation and consider the application for extension of stay appropriately. Thus, on expiry of maximum period of 180 days the assessee / appellant is required to submit application for extension of stay each time and the Appellate Tribunal is required to consider the individual case and pass a speaking order, as stated hereinabove. By the aforesaid it may also not be understood that the Appellate Tribunal may go on extending the stay indefinitely and may not dispose of the appeals within stipulated time i.e. within 365 days from the date of grant of initial stay and/or at the earliest. All efforts shall be made by the learned Appellate Tribunal to dispose of the appeals at the earliest more particularly in a case where stay is operative against the revenue. The learned Appellate Tribunal and/or registrar of the Appellate Tribunal is required to maintain separate register with respect to the appeals in which stay has been granted fully and/or partially and appeals in which no stay has been granted and the Appellate Tribunal must and shall give priority to the appeals in which stay has been granted, continued and/or extended.

So far as the Question No. 2 is concerned, i.e. Whether the learned Appellate Tribunal is required to pass a speaking order while extending stay or not, for the reasons stated above, the said question is answered in favour of the revenue - department and against the assessee. Consequently, all the matters are remanded to the learned Appellate Tribunal to pass appropriate order afresh and pass speaking and reasoned order in light of the observations made hereinabove. Such exercise shall be completed within a period of two months from today. So as to see that the applications of the respective appellants / assesses for extension of stay do not become infructuous, it is directed that the stay order which is extended by the Appellate Tribunal shall be continued for a further period of two months. It goes without saying that even during the aforesaid period of two months, the Appellate Tribunal may dispose of the appeals finally.

All these appeals are partly allowed to the aforesaid extent and the matters are remitted back to the file of the learned Appellate Tribunal for passing orders afresh, as stated above."

In view of the above and for the reasons stated in Tax Appeal No. 341 of 2014 and other allied Tax Appeals, Question No. 1 is held in favour of the assessee and against the revenue and Question No. 2 is answered in favour of the revenue and against the assessee. The matter is remanded to the learned Appellate Tribunal to pass a fresh speaking order on the application submitted by the assessee to extend the stay granted earlier in light of our observations made in the judgement and order passed in Tax Appeal No. 341 of 2014 and other allied Tax Appeals, within a period of two months from today. So as to see that the application of the assessee for extension of stay does not become infructuous, it is directed that the stay order which is extended by the learned Appellate Tribunal shall be continued for a further period of two months. It goes without saying that during the aforesaid period of two months, the learned Appellate Tribunal may dispose of the appeal finally.

With this present present appeal is partly allowed to the aforesaid extent and the matter is remitted to the file of the learned Appellate Tribunal for passing fresh order, as stated above. No costs.