ORDER
1. The prayer in this stay application reads : “that pending the application of the applicant for referring the matter to High Court, the implementation and/or enforcement and/or execution of the said order of the Tribunal should be stayed and the respondent should be ordered and directed to not to initiate any recovery proceedings of the said amounts in view of the said order of the Tribunal.” Shri Jain, Learned advocate for the applicant submitted that pending appeal this Bench had granted a stay of the recovery of the Central Excise duty and penalty on furnishing bank guarantee. This stay was to ensure till the disposal of the appeal. The appeal had been since disposed of. The appellant had filed an application for reference and that application is pending. Till the disposal of that application stay of the recovery of the duty and penalty ordered in the judgment of the Tribunal may be granted. Shri Jain made it clear that the Central Excise Act and the Rules do not contain any provision authorising grant of stay pending consideration of the Reference Application. He, however, submitted that the Tribunal has inherent power to grant stay. Shri Jain frankly admitted that he could not lay his hand on any decision of any High Court in support of his contention.
2. Shri Pattekar for the Respondent Collector opposed the application. He contended that in the absence of a specific provision for grant of stay the Tribunal has no jurisdiction to grant stay. He, therefore, submitted that the application may be rejected.
3. Considered the submissions made on both sides. The Central Excises and Salt Act, 1944 (to be hereinafter referred to as the Act) has no provision for grant of stay of recovery of duty or penalty. Section 35-F requires an appellant to pre-deposit the duty/penalty before his appeal could be heard. The proviso to said Section however, vests discretion in the Tribunal to dispense with such deposit in an appropriate case. Even though the Act does not specifically authorise grant of stay of recovery of duty/penalty the Tribunal has been granting stay of recovery. This was being done on the assumption that the Tribunal has power to order stay in the exercise of its incidental and ancillary powers as an appellate authority. The appellate authority cannot exercise this ancillary and incidental power after the appeal is finally disposed of. The appeal is always considered as a continuation of the original proceedings but the same cannot be said of the reference application. It is an independent proceedings. The statute in my view should specifically confer a power to the Tribunal to grant stay of the execution of its own order. It may be stated here that the Act does not provide for an appeal against the order passed by a Regional Bench. It no doubt provides for a reference being made to the High Court on a question of law which arises out of the order. Otherwise the order of the Regional Bench is final. The provisions of Civil Procedure Code are not made applicable to the proceedings before the Tribunal. Even under the Civil Procedure Code it is only in respect of an appealable decree-the Court which passed the decree is empowered to grant stay of execution of the decree. As has been stated earlier no appeal is provided against an order passed by a Regional Bench. It is also pertinent to note that Civil Procedure Code makes specific provision for grant of stay of execution of a decree by the court which passed the decree. Similarly the Criminal Procedure Code specifically provides for suspension of sentence by the court which imposed the sentence. Thus even the courts were not exercising inherent power in the matter of grant of stay of execution of decree or suspension of sentence. Section 265 of Income-tax Act provides that tax shall be payable notwithstanding a pendency of reference in the High Court. It may be pointed out that under the Income-tax Act pre-deposit of tax is not a condition precedent to hear the appeal by the Tribunal. Even then it is provided in Section 265 of that Act that tax shall be payable notwithstanding that a reference has been made to the High Court.
4 When the Central Excises and Salt Act makes it obligatory for an aggrieved person to pre-deposit the duty and penalty before his appeal could be considered it would not be reasonable to assume that the Tribunal has inherent power to grant stay of realisation of duty and penalty even after the disposal of the appeal but pending consideration of the Reference Application.
5. Even assuming that the Tribunal has an inherent power to grant stay of the recovery of duty and penalty the facts arid circumstances of the case do not justify the exercise of the inherent power in favour of the appellant.
6. On careful consideration of all the aspects I reject the prayer.
7. In the result this application fails and the same is rejected.