The Appellate Tribunal could extend the stay beyond 365 days if delay in appeal disposal was not attributable to the appellant and the appellant had cooperated. The Tribunal was required to pass a speaking order when extending the stay, considering the facts of each case and arriving at subjective satisfaction.

M.R. SHAH, J.

1.00. As common question of law and facts arise in this group of appeals, all these appeals are decided and disposed of by this common judgement and order.

2.00. In all these Tax Appeals preferred by the revenue, the revenue has proposed the following substantial questions of law :

(i) Whether the learned Appellate Tribunal has jurisdiction to extend the stay granted earlier beyond the total period of 365 days in view of statutory provisions contained in Section 35C(2A) of the Central Excise Act, 1944?

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

3.00. At the outset, it is required to be noted that in all these appeals which are pending before the learned Appellate Tribunal, initially the learned Appellate Tribunal granted stay which has been extended by the learned Appellate Tribunal by the impugned orders even beyond the total period of 365 days from the date of granting initial stay. Being aggrieved by and dissatisfied with the impugned orders of extending the stay granted earlier even beyond the total period of 365 days from the date of granting initial stay, the revenue has preferred all these Tax Appeals with the aforesaid substantial questions of law.

3.01. It is the case on behalf of the revenue that in view of the provisions contained in section 35C(2A) of the Act, the Appellate Tribunal has no jurisdiction at all to grant / extend stay granted earlier beyond the total period of 365 days from the date of the order passed under sub-section (1) of section 35 of the Act and as such after expiry of 365 days from the date of order referred to in first proviso, stay order shall stand vacated automatically. Therefore, it is the case on behalf of the learned advocates appearing on behalf of the revenue that any order passed by the learned Appellate Tribunal extending the stay beyond the total period of 365 days shall be without jurisdiction and hit by section 35C(2A).

3.02. It is further submitted by the learned advocates appearing on behalf of the revenue that when the legislature intended that there shall not be any stay beyond the total period of 365 days and when 3rd proviso to section 35C(2A) provides that any stay beyond 365 days stands vacated, no stay shall be extended beyond the total period of 365 days as by operation of law, after total period of 365 days, the stay granted earlier stands vacated.

3.03. Mr.Yogesh Ravani, learned advocate appearing on behalf of the revenue appearing in some of the appeals has submitted that the appeal is a creation of statute and in case a person wants to avail a right of appeal, he has to accept the condition imposed by statute. It is submitted that therefore, when the right of appeal being a creature of statute, legislation could impose condition for exercise of such right. It is submitted that neither there is unconstitutionality nor there is legal impediment for imposing such a condition. It is further submitted by Mr.Ravani, learned advocate and the other learned advocates appearing on behalf of the revenue that while interpreting the provisions of statute literal and the plain meaning should be adopted. It is submitted that therefore the word “shall” make it mandatory. It is submitted that therefore, the learned Appellate Tribunal has no jurisdiction at all to extend the stay beyond 365 days. It is submitted that the intention of the legislature by section 35C(2A) of the Act is that the appeals involving the revenue are decided and disposed of at the earliest and within stipulated time so that ultimately the revenue may not have to suffer. It is submitted that for various reasons, the assesses prefer appeals and mainly with a view to delay the proceedings and ultimately to delay the payment of tax liabi