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Dear Professional Colleague,

Any Stay Order passed by the Tribunal, if is in force beyond August 7, 2014, shall continue till disposal of appeals – No need for filing application for extension

We are sharing with you an important judgement of the Hon’ble CESTAT, Ahmedabad, in the case of Venketeshwara Filaments Pvt. Ltd. & Others Vs. Commissioner of Central Excise and Service Tax, Vapi [2014-TIOL-2388-CESTAT-AHM] on following issue:

Issue:

After omission of 1st, 2nd and 3rdprovisos to Section 35C(2A) of the Central Excise Act, 1944 by the Finance Act, 2014, is there any requirement to file an application for extension of Stay Order passed by the Tribunal which is in force beyond August 7, 2014?

Facts & background:

Venketeshwara Filaments Pvt. Ltd. & Others (the Appellants”) were granted Stay by the Hon’ble CESTAT, Ahmedabad which was subsequently extended. That Stay was to coming to an end on August 21, 2014.

Fearing that the Department may initiate coercive action, the Appellants as a precautionary measure, filed applications before the Hon’ble CESTAT, Ahmedabad seeking further Stay in the matter.

The Appellants submitted that since the 1st, 2nd and 3rdprovisos to Section 35C(2A) of the Central Excise Act, 1944 (“the Excise Act”) were omitted by the Finance Act, 2014, the position as on date is that there is no requirement for extension of initial Stay granted and subsequent extensions. It was further submitted that no saving clause is enacted in Section 35C (2A) of the Excise Act and hence once the provisos are omitted nothing survives.

On the other hand, the Revenue submitted that it cannot be the intention and reading of the legislation as initially when the Stay was granted and extended, there was a statutory period of 180 days applicable in the cases where the Stay was initially granted.

Held:

The Hon’ble CESTAT, Ahmedabad after considering the submissions of both the parties and extracting the provisions of Section 35C (2A) of the Excise Act, as they existed before the omission of the provisos by the Finance Act, 2014, initially observed as under:

· The omissions of 1st, 2nd and 3rd proviso to Section 35C(2A) of the Excise Act now has to be read to the effect that there is no provision for making any further applications for extension of Stay nor Tribunal has powers for hearing and disposing the applications for extension of Stay from August 7, 2014. In the absence of any provisions for hearing and disposing applications for extension of Stay, the applications made by the Appellants herein have to be disposed of as such;

· At the same time, it would also mean that after initial granting of Stay by the Tribunal, Order does not get lapsed. Omission of 1st, 2nd and 3rd proviso would mean that the appeal filed by an assessee needs to be disposed of within a period of 3 years is only the requirement and Stay Orders which has been passed by the Tribunal under the powers mandated by Section 35C of the Excise Act would remain in force.

Therefore, after noting  the aforesaid views are fortified by the judgment of the Hon’ble High Court of Gujarat in the case of Krishna Processors [2013-TIOL-72-HC-AHM-CX] wherein reliance was placed on the Apex Court decision in Kolhapur Cane Sugar Works [2002-TIOL-188-SC-CX], the Hon’ble Tribunal concluded that any Stay Order passed by the Tribunal, if it is in force beyond August 7, 2014, it would continue till the disposal of the appeals and there is no need for filing any further applications for extension of orders granting Stay either fully or partially.

Hope the information will assist you in your Professional endeavors. In case of any query/ information, please do not hesitate to write back to us.

Thanks & Best Regards,

Bimal Jain

FCA, FCS, LLB, B.Com (Hons)

Flat No. 34B, Ground Floor, Pocket - 1,

MayurVihar, Phase - I,

Delhi – 110091, India

Email: bimaljain@hotmail.com

Web: www.a2ztaxcorp.com

Disclaimer: The contents of this document are solely for informational purpose. It does not constitute professional advice or recommendation of firm. Neither the authors nor firm and its affiliates accepts any liabilities for any loss or damage of any kind arising out of any information in this document nor for any actions taken in reliance thereon.

Readers are advised to consult the professional for understanding applicability of this newsletter in the respective scenarios. While due care has been taken in preparing this document, the existence of mistakes and omissions herein is not ruled out. No part of this document should be distributed or copied (except for personal, non-commercial use) without our written permission.


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Category Excise, Other Articles by - Bimal Jain 



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