Per J.H. Joglekar : The Commissioner of Central Excise, Ahmedabad vide his order in original No. 21/COMMR/2000 confirmed duty of Rs. 17,06,211/- as payable by M/s. Kumar Cotton Mills Pvt. Ltd. He also imposed a penalty of equal amount on them. He also imposed a penalty of Rs. 1.7 lakhs on Shri P.D. Patel, Director of the Mills. Against this order two appeals were filed and also applications for waiver of pre-deposit. Tribunal vide order No. C-I/1396-97/WZB/2001 dated 23/03/2001 directed the manufacturer mills to deposit 6 lakhs and Shri Patel was directed to deposit Rs. 20,000/-. Compliance was reported and noted by the Tribunal on 09/08/2001.

2. On 03/07/2002 the appellant Mills received a communication from the jurisdictional Superintendent of Central Excise. The operative portion of this communication reads as under :

"In this connection, it is brought to your notice that after the introduction of sub-section 2-A in Section 35-C of CEA, 1944 in the recent Budget, any stay including a partial stay if granted by the Hon'ble CEGAT in any appeal, the same should be disposed of within a period of 180 days from the date of such order if such appeal is not disposed of within the specified period the stay order shall, on expiry of that period stand vacated''.

"In view of the above, it is requested to let this office know whether your aforesaid appeal is disposed of or not, if not, please pay up the Govt. dues outstanding within two days failing which action under C.Ex. provisions will be taken against you."

3. The present miscellaneous application has been filed seeking orders for continuation of the stay order notwithstanding the amendment made in Section 35C of the Act.

4. Since the issue has substantial consequences and since the amendments would give rise to a number of similar situations the application was posted for disposal and advocates and consultants not representing the applicants were also permitted to contribute their views on the coverage and the implication of the amendments. For ease of reference the concerned provision, namely, Section 35(C)(2A), is reproduced below :

"(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 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."

5. Shri Vipin Kumar Jain, Chartered Accountant was representing the applicants. He submitted that the amendment was dated 11/05/2002. In the absence of any specific clause in the amendment it could not have retrospective effect. As a result this amendment could not adversely affect any stay order made prior to the date of amendment. In making this statement he relied upon the Bombay High Court judgment in the case of Universal Drinks Pvt. Ltd. Vs. UOI 1984 (18) ELT 207. He also relied upon the Supreme Court judgment in the case of Hoosein Kasam Dada (India) Ltd. Vs. State of Madhya Pradesh 1983 ELT 1277. He also placed reliance on the Delhi High Court judgment in the case of UK Paints Industries Vs. UOI 2002 (144) ELT 255.

6. Shri Jain then referred to the Supreme Court judgment in the case of Garikapatti Veeraya Vs. N. Subbiah Choudhury 1957 (44) AIR 540 (SC) = 1957 (1) SCR 488 SC. The Supreme Court in this case had held as follows :

"From the decisions cited above the following principles clearly emerge :