Extensions of stay beyond 365 days by Appellate Tribunal require valid reasons and a speaking order.

JUDGEMENT

(PER : HONOURABLE MR.JUSTICE M.R. SHAH) Draft Amendment is allowed.

1.00. Feeling aggrieved and dissatisfied with the impugned order passed by the learned Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench, Ahmedabad dated 26/12/2013 bearing Order No.M/16123- 16171, 16175-16184/2013 passed in Appeal No.E/1090/2008, 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 question of law :

“(1) Whether in the facts and circumstances of the case, the Tribunal has committed substantial error of law in granting extension of stay beyond 365 days by ignoring specific provision contained in third proviso to section 35C(2A) of the Central Excise Act, 1944? (2) Whether the Honourable Customs, Excise and Service Tax Appellate Tribunal (CESTAT) West Zonal Bench, Ahmedabad, while passing Order dated 26/12/2013 bearing Order No.M/16123- 16171, 16175-16184/2013 passed in Appeal No.E/1090/2008, has committed an error in passing a common non-speaking order for extension of stay when each matter is required to be considered independent on the aspect of delay and the reasons for delay? 2.00. By our earlier order dated 10/7/2014, Notice for final disposal has been issued. Though served, nobody appears on behalf of the respondent.

3.00. 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.

4.00. 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 :

“6.00. 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