At, High Court of Chhattisgarh
By, THE HONOURABLE MR. JUSTICE MANINDRA MOHAN SHRIVASTAVA & THE HONOURABLE MR. JUSTICE NAVIN SINHA
For the Appearing Parties: Anumeh Shrivastava, Maneesh Sharma, Advocates.
1. The question of law and facts involved in these appeals being common, they have been taken together and are being disposed by this common order. For better appreciation and convenience we shall refer to the facts from Tax Case No. 30/2014. We have heard learned Counsel for the appellants and the respondents. The appellant was issued show cause notice on 30 -4 -2010 by the Commissioner, Central Excise and Customs, Raipur with regard to CENVAT Credit availed for Rs. 62,44,593/ - as to why it should not be disallowed and recovered with interest under Rule 14 of the CENVAT Credit Rules, 2004 read with Sections 11A(1) and 11AB of the Central Excise Act along with penalty under Rule 15 of the CENVAT Credit Rules, 2004. After considering cause shown by order dated 30-12 -2010, the CENVAT Credit for Rs. 62,44,593/ - was disallowed and the penalty of equal amount imposed with recovery order. Appeal No. E876/2011 -E(D.B.) was filed before the Tribunal along with Stay Application No. 1079/2010 -11. On 30 -1 -2012, the Tribunal granted relief of waiver of pre -deposit and allowed the stay application. The appeal remained pending. Relying on Section 35C(2A) of the Central Excise Act, 1944, stay has been vacated on 16 -6 -2014, on the ground that the maximum statutory period of 365 days for which stay could remain operative pending disposal of the appeal had expired.
2. Learned Counsel for the appellant submits that the order of the Tribunal itself notices that the appellant was not at fault in consideration of the appeal and timely disposal. The order itself states that the present was an appeal of 2008 and appeals of 2005 were still pending. The delay was not attributable to the assessee.
3. Counsel for the respondent has opposed the appeal submitting that if a statutory provision was there on expiry of which stay had to be vacated, the Tribunal had no option except to comply the same. The question of the assessee not being at fault is irrelevant in view of the statutory provisions. The Tribunal has adequately relied upon precedents in Paragraph 5 of the order.
Each case has to be decided on its own facts. Before the ratio of an order can apply to another, the facts of the two cases have to be seen. Paragraph 5 of the order under appeal does not deal with the facts of the case on which reliance has been placed.
4. It is necessary to set out Section 35C(2A) which reads as follows -
"Section 35C(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 proceedings 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: Provided also that where such appeal is not disposed of within the period specified in the first proviso, the Appellate Tribunal may, on an application made in this behalf by a party and on being satisfied that the delay in disposing of the appeal is not attributable to such party, extend the period of stay to such further period, as it thinks fit, not exceeding one hundred and eighty -five days, and in case the appeal is not so disposed of within the total period of three hundred and sixty -five days from the date of order referred to in the first proviso, the stay order shall, on the expiry of the said period, stand vacated."
5. A bare reading of the statutory provision shows that the Appellate Tribunal will endeavour to decide the appeal within a period of three years from the date it is filed. The significance of the words "where it is possible to do so" cannot be lost site of in interpreting the provision. The statutory provision is therefore not a complete embargo that under all circumstances, notwithstanding any other issue involved, stay has to be mandatorily vacated. In other words, the statutory provision is itself discretionary in nature and its operation would depend upon the facts and circumstances of each case. If the assessee after obtaining stay plays truant to delay disposal, the statutory provision can certainly be invoked. It cannot be invoked if the respondents play truant to delay disposal so that the statutory period would lapse, stay would have to be vacated and the appeal rendered futile. If despite diligence on the part of the appellant, the Tribunal has not been able to take up the appeal due to pressure of pendency of cases, stay cannot be vacated. Any interpretation to the contrary shall be doing complete violence to the statutory provisions and has to be rejected.
6. The Tribunal itself states that the appeals of earlier years were pending and therefore, it has not been able to decide appellant's appeal. The appellant was not at fault. It is trite law that the act of the Court can prejudice none stated in the maxim actus curiae neminem gravabit. The delay in disposal of the appeal is attributable to circumstances beyond the control of the Tribunal and not to the assessee.
7. The impugned order dated 16 -6 -2014 vacating the stay on gro
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und that the statutory period of stay without adjudication had expired is set aside and the application filed by the appellant for extension of stay order is allowed. 8. The Tribunal shall endeavour to dispose the appeal at its earliest convenience subject to co -operation by the parties. 9. The present order cannot be considered as a complete embargo on the Tribunal with regard to the stay matter under all circumstances and discretion of the Tribunal in future to be exercised in accordance with law on basis of subsequent facts remains unhindered. The appeal is allowed.