Commissioner of Central Excise vs GPL Polyfils

@DELETEUPPERDATA

The appeal by the Revenue arises from an order of the Customs, Excise & Service Tax Appellate Tribunal [Tribunal], dated 7 March 2014. For convenience of reference, the order is extracted herein below:-

"This appeal could not be heard within the prescribed period of 180 days for no fault on the part of the applicants and, therefore, in view of the decision of the Hon''ble Supreme Court in 2005 (123) ECR 6 (SC), the interim stay, as granted, will continue until further orders. The miscellaneous application stands disposed of accordingly."

The Revenue in the present appeal has formulated the following questions of law:-

"(i) Whether the Hon''ble CESTAT has 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 35C(2A) of the Central Excise Act, 1944 made through the enactment of Finance Bill, 2013?

(ii) When the Hon''ble High Court Allahabad vide order, dated 8-10-2013 in the case of Commissioner, Central Excise, Kanpur v. M/s. J.P. Transformers, E-21, Panki Industrial Area, Site-I, Kanpur has held that entire object and purpose of insertion of sub-section (2A) in Section 35C by Section 140 of the Finance Act, 2002 (20 of 2002) w.e.f. 11-5-2002 and third proviso by Finance Act, 2013 will stand defeated, if the waiver of pre deposit is granted indefinitely. The judgment in Kumar Cotton Mills Pvt. Ltd. (supra) cannot be interpreted to give powers to the tribunal to extend the order of waiver of pre deposit indefinitely."

The appeal is admitted on these questions and is, by consent, heard finally.

Section 35C(2A) of the Central Excise Act, 1944 (the Act) provides as follows:-

"(2A) The Appellate Tribunal shall, where it is possible to do so, hear and decide every appeal within a period of three years from the date on which such appeal is filed:

Provided that where an order of stay is made in any proceedings relating to an appeal filed under sub-section (1) of Section 35B, the Appellate Tribunal shall dispose of the appeal within a period of one hundred and eighty days from the date of such order:

Provided further that if such appeal is not disposed of within the period specified in the first proviso, the stay order shall, on the expiry of that period, stand vacated."

In a similar case, in Commissioner of Cus. and C. Ex. Vs. J.P. Transformers, , which was decided by a Division Bench of this Court on 8 October 2013, the Division Bench referred to the decision of the Supreme Court in 2005 (123) ECR 6 (SC). While considering the provisions of the second proviso to Section 35C(2A) of the Act, the Supreme Court held as follows:-

"6. The sub-section which was introduced in terrorem cannot be construed as punishing the assessees for matters which may be completely beyond their control. For example, many of the Tribunals are not constituted and it is not possible for such Tribunals to dispose of matters. Occasionally by reason of other administrative exigencies for which the assessee cannot be held liable, the stay applications are not disposed within the time specified. The reasoning of the Tribunal expressed in the impugned order and as expressed in the Larger Bench matter, namely, IPCL v. Commissioner of Central Excise, Vadodara (supra) cannot be faulted. However we should not be understood as holding that any latitude is given to the Tribunal to extend the period of stay except on good cause and only if the Tribunal is satisfied that the matter could not be heard and disposed of by reason of the fault of the Tribunal for reasons not attributable to the assessee."

Consequently, while interpreting the provisions of Section 35C(2A) of the Act, the Division Bench held as follows:-

"Though we are conscious of the pendency of the appeals and workload assigned to the Principal Bench as well as various Benches of CESTAT, we are of the view that entire object and purpose of insertion of sub-section 2A in Section 35C by Section 140 of the Finance Act, 2002 (20 of 2002) w.e.f. 11-5-2002 and third Proviso by Finance Act, 2013 will stand defeated, if the waiver of pre-deposit is granted indefinitely. The judgment in Kumar Cotton Mills Pvt. Ltd. (Supra) cannot be interpreted to give powers to the Tribunal to extend the order of waiver of pre-deposit indefinitely.

In the circumstances, the appeal is disposed of with directions to the CESTAT to decide the appeal expeditiously and if possible within a period of six months from the date of the extension, dated 3-6-2013. The waiver of pre-deposit will continue to be valid upto the period of six months from its last extension, dated 3-6-2013."

In the present case, the Tribunal has noted that a waiver of pre-deposit and unconditional stay on the realisation of the adjudicated liability was granted by the Tribunal since a prima facie case was found in favour of the assessee. The Tribunal has also observed that the appeal has not been disposed of only on account of the pendency of several older appeals and not on account of any delay on the part of the assessee.

In this view of the matter, we are of the view that the ends of justice would be met if the Tribunal is requested to dispose of the appeal expeditiously and preferably within a period of six months from today. The waiver of pre-deposit will continue to remain valid for a period of six months from today.

Since the question of law has already been answered in terms of the decision of the Division Bench of this Court in J.P. Transformers (supra), we answer the questions accordingly. The appeal is, accordingly, disposed of. There shall be no order as to costs.