Unitech Prefab Ltd. vs Commissioner Of C. Ex. on 26 September, 2003

ORDER

C. Satapathy, Member (T)

1. These three applications have been filed for extension of stay granted earlier. We have since dealt with this very same issue in the case of M/s. Themis Pharmaceuticals and Others [2003 (157) E.L.T. 569 (Tri. – Mumbai)] holding as follows :-

(i)       Section 35F requires pre-deposit of duty and penalty pending appeal.
 

(ii)      Proviso to the said Section 35F gives statutory power to the Tribunal to waive such pre-deposit in suitable cases.
 

(iii)     Since no amendment has been made to Section 35F, Tribunal's power to waive pre-deposit during the pendency of appeal remains unaltered.
 

(iv)     Power of the Tribunal to stay recovery and to grant stay of an order appealed against is incidental to exercising its appellate function.
 

(v)      Amendment of Section 35C by the Finance Act, 2002 places a specific legal restraint on exercise of such incidental power beyond 180 days as per clear wording of Sub-section (2A) of the said Section 35C.
 

(vi)     Tribunal being a creature of the same statute cannot question the vires of the said Sub-section (2A).
 

2. Following our earlier finding in the said case, we reject these miscellaneous applications seeking extension of the stay orders earlier granted by the Tribunal. However, we clarify that waiver of pre-deposit granted under Section 35F will continue. We also direct the Registry to fix the regular hearing of the connected appeals out of turn in these cases.

3. Miscellaneous applications are disposed of in the above terms.