Per C. Satapathy : These 17 applications involve a common issue: whether the Tribunal can grant stay beyond a period of 180 days. The newly inserted sub-section (2A) of Section 35C of the Central Excise Act, 1944 reads as under:-

"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 proceeding 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."

The learned J.C.D.R. as well as the learned counsels appearing for various applicants inform us that there are as yet no decisions of the Apex Court or any of the High Courts on this issue. They also inform us that the Department, in consultation with the Ministry of Law and the learned Solicitor General of India, has taken a view that the Tribunal cannot give stay beyond 180 days and SLP filed in the Apex Court is pending. Since a decision by the Apex Court is likely to take some time and numerous applications for extension of stay are being filed before us, we proceed to decide these applications.

2. Though there is no direct judicial pronouncement on this issue, we find that in the context of time limit of 6 months specified in Article 164 (4) of the Constitution, in the case of S.R. Chaudhuri Vs. State of Punjab, the Apex Court has rendered a decision on 17/08/2001 (2001 SOL Case No. 469). It was pleaded in that case that the plain language of Article 164(4) did not prohibit re-appointment of a Minister without being elected, even repeatedly. This was not accepted by the Apex Court which ruled to the effect that Article 164(4) provides a restriction, re-appointment beyond a period of 6 months would be an abuse of the said provision, permitting repeated appointments would not only make the Article nugatory but would also be inconsistent with its basic premise, constitutional restraints must not be ignored or bypassed if found inconvenient or bent to suit political expediency, and that the clear mandate of Article 164 cannot be allowed to be frustrated by giving a gap of a few days and making a re-appointment. The Apex Court also opined, "The words used may be general in terms but, their full import and true meaning, has to be appreciated considering the true context in which the same are used and the purpose which they seek to achieve."

3. In the light of the aforesaid pronouncement of the Apex Court, when we look at the language of sub-section (2A) of Section 35C of the Central Excise Act, 1944, the legislative intent of the said sub-section clearly emerges as follows:-

(i) Where possible, the Tribunal shall decide every appeal within a period of 3 years.

(ii) Cases where stay is granted shall be decided within 180 days, and

(iii) Failing which stay order shall stand vacated on expiry of 180 days.

The question is, can be Tribunal grant further extensions of stay beyond a period of 180 days if the appeal is not decided by then? Respectfully following the principles underlying the Apex Court decision cited above, we observe that:-

(a) Second proviso to sub-section (2A) of Section 35C provides a restriction on the continuance of stay beyond 180 days.

(b) Permitting extension and repeated extensions beyond 180 days would make the said provision nugatory and frustrate its clear mandate,

(c) The legislative change made by the Parliament through the Finance Act, 2002 would become redundant if such extensions beyond 180 days are to be granted by the Tribunal.

(d) Legal restraints placed by the said sub-section (2A) should not be ignored or bypassed on grounds of convenience or expediency.

4. We are aware of the fact that there a