Karnataka High Court
Commissioner Of Central Excise vs M/S Indian Oil Corporation on 24 August, 2010
Bench: N.Kumar, H.S.Kempanna
QE 1 CEA 29i2008
IN THE HIGH COURT OF KARNATAKA, BANGA3_ORE,_>
DATED THiS THE 24" DAY or AUGUST 391V
PRESENT: Q: jig
THE HON'BLE Mr.JusTicE'irNT.mriAeh"E
AND a
THE HON'BLE
BETWEEN: J L
Commissioner of..C'e_ntra| Eixcise,' = '
73'FloorTrade4C.entt;e,._~_ ~ ' '
Bunts Hostel ?toad*f"'"' . s
Mangalore e 575 3 V ~ ...Appe||ant
(By Sri.Y:ieiar5prasad'{fAdveeat:e) E
AND; it kt 2 V
.» «M/s. indiari Oil V Cer;jo'r«a.t.i._0n,
i\IiartVg'aioré2'iTeriTTina|,
1Paaambjw,"Mang'alore. ' . . . Respondent
: _ (By'TS'.ri';Ha.ristT',j'Adtrecatefor ' ' _M/s.H«arish'andcompany) CEA is filed under Section 35G of the Central Excise ___'"Act,;1944 arising out of order dated 28.11.2007 passed in Finai T ,'_4'Order No.825--827/2007, praying that this Hon'bie Court may be i.i'/ 2 CEA 29/2008 pleased to decide the substantial questions of law stated therein, etc. This CEA coming on for admission this day, J., delivered the foilowirlgr " -:~ JUDGEMEN1""« This appeal is by the revenue._.c:t'rAai.i'eng'i'n_gyAthe passed by the CESTAT and 'Tax it Appellate Tribunal) holding that there is nVoaArequiA'rem'en't§ to pass any order extending the of ordered and the stay of recoxfrery;vshaliiliyyremiaitt disposal of the appeal.
2. A"They holder of Central Excise Registration Cer'tif§Ca'te. ltmis carrying on the business of pVrocu'ri'ngr~c_learing various petroleum products such as diesel, kerosene, furnace oil, etc., to T their d«epo.tsi'co:rnpany owned company operated retail pump T'Vii~r:iutiters/jubilee outlets (coco RPOS for short) located at vartou~s--Aplaces. The said products are subsequently sold from it ':'_4'th»eir: depots to their rental outlets. The assessee was issued Ex' 3 CEA 29/2008 ' with a show--cause notice demanding the differential duty of Rs.7,83,142/-- (CENVAT Rs.6,00,320.42 + Rs.1,82,821.58) for the period 01.08.2001 to 2s.o2.2sto2Vgs'uride.it the provisions of Section 1tA apart from deman.d_i'n'g--..intiejrest at C the rate of 24% under Section 11AB;:and::prop'osal_A'to:r"pen'altyVt' under Rule 25 of CE(2) Fiules, V20_0t. 4T--h_e'iasses.s"ee.gave";his reply opposing the said claim. ThVe»..Assi_stant~Cornmis:sioner of Central Excise by his order:4dtated'éi0:.0v'ti..g0,03.'held thatthe price charged in respect of motorppspirit diesel at their COCO (Company 'ontned cornpany"o;i:3:erate.d.):ioutlets should be treated tr'arisactgio?nV value in terms of Central Excise Valuation ('L'3eterminat'iori-- oi?'---.i?5:r'i:ce of Excisable Goods) Rules, 2000 re-adggwith Sectihioniin of the Central Excise Act, 1944. Aggrievedii'-by thesaidioirder, the assessee preferred an appeal loe-fore_tVhev:.Corr:rn'i-ssioner (Appeals), Mangalore who dismissed the ap«peavI__v'and~" upheld the order of the assessing authority.
"".:l".""--ZXgggriVeved'v».l$y the same, the assessee preferred an appeal E..3_'etore the CESTAT, Chennai. The assesses also filed an lmappiication for stay of the impugned order dated 14.01.2004.
4 CEA 29r'2008 The Tribunal granted stay of recovery vide stay order Nd;93.8-- 940/2008 dated 24.08.2006 subject to the assesseei~~niaVEti_ng' pre--deposit of 1/5"' of the total amount of duty. 0 assessee deposited a sum of per proviso to Section 35C(2)(A)__of the_'v."GentraV_g'.Ygitcéivse 1944 (for short, hereinafter refe'rr'e:i:.j;'?'toVV the appeal in respect of whi'c:h."':an is not disposed of within a period date of the stay order, on of 180 days, the stay stands initiated recovery proceedings' _ assessee filed a miscellaneoqs' _app.|_iAcatioij~...,,.:':&be'fore the Tribunal seeking extensiran of stay vgraritedon 24.08.2006. The Department filed .a"coun"ter appliication ohiecting extension of the stay order. The Tribune!"purpo_rti.ng.'--ito follow the law laid down by the Gujarat 0' High 'G_ourt"in!ithAe case of Polyfill Sacks --vs Union of India "'~i*irttPre'per:ed zirrv--~2005(183) ELT 344 (Gujarat), wherein it has been hieiditrhat, there is no requirement to pass any order extending it lmstayiiof recovery already ordered and that, such stay of recovery it/"
5 CEA 29/2008
shall remain valid till final disposal of the appeal, has retrai.ned the Department from proceeding with the recovery V. pending disposal of the appeal on merits.
said order, the Department has preferr'ed't'hia ,appe;ai,Al,:_" , V'
3. The revenue ass'ai'l«i.n.g the imp'Lignedr...,,,o.:3'der contended that, by the introductiongot-$eotion ::V2._A(A)twith two provisos, by Act 20 of into force on 11.05.2002, any order of staygrjginteg.,ybyA'tlne:'.'arppellate Tribunal shall on the e.xpi.ry This express provisionhas. The judgement of the Gu;'ar~at' with an order passed on 21.05.1996 Vbie.for'e theA'sai'd'~~'l'amendment and therefore, the ."v.impugri5'edE order passedwirs exfacie, illegal and liable to be set V'Va,sid.e;' ---He"ais'o:"c~ontended that, when once it is specifically provi.ded by amendment that the said order shall come to an end withvthe expiry of 180 days from the date the order is passeCi',~r,in the absence of any provision for extension of the order or in the absence of any power, conferred on the l/ 6 CEA 29/ 2008 Tribunai to extend the stay order granted eariier, the Tribunai extending the stay order wouid not arise and thereiforie';g:«b.Vh'e' contends, seen from any angie, the impugned * be set aside and the application stay dismissed.
4. Per contra, the Iearnediviéieoyunsel "ap,o_tea'ring; for the assessee submitted, though'-;r.n Section "before amendment and after amendment, there 'no'expre'se pI*o'vv§'sion conferring power on the to _extend'xth.e stat/order granted eariier, the Tribu,nai~i.i_ri"'exerei,;sie -its "appeiviate power has inherent power togrant and of:"st:auy'.__'as weli as to extend the stay granted eariier_.y - "absence of any specific provision .~vv.pvrohibi'ting exte«ns.i.orr, the power to extend stay is to be V"--gathe'1'edappeiIate power as weli as the inherent poweroi the'iv"'J'jriVl'3'una|, that is the view, which is taken by the 'various. Courts inciuding the Apex Court and therefore, he .:f_ubAmiits~,_. even if the order of the Tribunai is heid to be \t/' CEA 29/2008 erroneous, the assessee cannot be denied the benefit of extension of stay order.
5. In the light of the aforesaid factefaindi' contentions, the point that would arise for-.ourT_consideratio.n',is"; as under:
In the absence of any.,_:express' provision VVi'nV4t'h'e Act, 'V for granting an interim.' order-of Whether_..the-.Trilouynai"'vhasijpower to grant of the impugined]'ovrdef?
" Tribunal has power to extend V thew"'perivod"'ot..--~stay granted at the expiry of view of amendment Act 20 of introducing Section 2(A) to Section 35(0) of the Act?
Before the introduction of Section and vitrified provisos, there was no express provision in i'3iectvioh«~i;35C of the Act providing for grant of an order of stay of .___"'theimpugned orders. However, on an application filed for such K/.
8 CEA 29f2008 stay order, the Tribunal was granting such stay orders. Similar situation was in existence in the appeal provisions L|i'lC1'E?:.l""«Il'l'€3A4 income Tax Act. The Apex Court in the case ' Officer --vs~ M.K.ll/fohammed Kunhi reported ;lir7"Fr_, A"
815, in those circumstances held as un"deri:'.A_Ai "
"the arguments advairiceid on baehailftof the appellant before usthat, the absenceiof any express provisions piazza: 255 of the Act relating-to stay'-off the pehdency must"V.'bg...ilield that no such the Tribunal, suffers infirmity inasmuch as it assumes and the premises that the statute' co%rrfers-_su-.éh'«a~'i' power on the lncome~tax Qfifiicer who give the necessary relief to an The right of appeal is a substantive A _T_righitfajncltxhée'gj.question of fact and law are at large " . iahd are'lip;p'en to review by the appellate Tribunal. A ilincieegirtihe Tribunal has been given very wide .. powers under Section 254(1), for it may pass such v .y_orders as it thinks fit after giving full hearing to both the parties to the appeal. if the Income-tax Officer and the Appellate Assistant Commissioner have 9 CEA 29/2008 made assessments or imposed penalties raising very large demands and if the Appellate Tribunal is; T entirely helpless in the matter of stay of recovery} the entire purpose of the appeal can be defe_at.e'd.i'g:'~:
ultimately orders of the departmental auth,o'i=ities.:: are set aside. it is difficult toV';conceive._tl"-lat legislature should have left the enatire_fmatte'r" _to-the " if administrative authorities to ' make' 'such iori;l.:ers_'avs they choose to pass in eiiercise ofxlnfettered discretion. The assessee, _asmh'as; pointed out before, has no righteto ,_e'ver1.im:ov_eiiiVar_:..:ap_plication when an appeal is:.pe'rrdiZng"bef.ore".the"»"'Appeliate Tribunal "i't"i's only at the earllier"f"sitaVge a'pp:'eal 'beroie the Appellate Ass'i,stant the statute provides for matter'.belng.t.e'deait with by the income- tax..Ouffice'r...:e_lt~is ale'-firmly established rule that an ..e.J.-. ' _ ._'§X'~press.._gran'i"of"statutory power carries with it by . an.,neceaSsaryl"'implications the authority to use all "-fryeason'ab_le.f':;'means to make such grant effective. A The powers which have been conferred by Section 254 volrr. the Appellate Tribunal with widest possible . A' amplitude must carry with them by necessary 'a_"im'plIcatIon all powers and duties incidental and 'A/.
10 CEA 29l'2008 necessary to make the exercise of those powersijieg lully effective". A' ln the end, the Supreme Court has held as..l,l,r_lt::l:eri ::.i.::
"Section 255(5) of the Act :i1'Qe:s_'e'rt1Dott!éil.l'l'.'K'1i Appellate Tribunal to regtllVa'te_ its 'own proc.eo'u_lve§. but it is very doubtful if thetvtpoytlerg of can spelt out from that,provlsion}" "lien; opinion'; the Appellate Tribunal must' the power to grant stay. as lnc'idental" ._or_ to its appellate i5j_"Dt§1r't.i"cul«a'rly so when Section with a situation whenl«a.ny';'ap'pe'a:l:y3 is 'p'en.ding"t3efore the Appellate Assistalét CVontmiVsslor'le:r;-but the Act is silent in that behal'l'_w'hyen' eanA:ffapVpea'l'«"ls pending before the Appellate.Tri'bl.Jnal.iV.lt eeula well be said that when saetlott V25'4"*--tcto_nfers appellate jurisdiction, lt «,lrrlplieidly.tgr.ants the power of doing all such acts, or .lernip!oyin'ghVft-such means, as are essentially ittnehcessatykto its execution and that the statutory powe"l',carries with it the duty in proper cases to at .rnake"'such orders for staying proceeding as will x"'.,.V'lpr.e'vent the appeal if successful from being rendered nugatory". K/, I I CEA 29/2008 Following the said decision, the Tribunal in Kumar Cotton Mills Private Limited --vs-- 20027146) ELT438 has held as under:
"Apart from the provtiso to ASev_otion appellate authority has inhei"e,nti»power' o_f"grantiii§g interim relief in the exere'ise",_;'~ot"-»..its appellate jurisdiction. This 'tbeien .:"ifecognised explained by the Suprerne 'base of Income Tax @,fii'¢:.er --I§_vsg ( 1992) lTi-'i 341. «-'We that it does not mean is filed the Collector'_' Tribunal must, as a matter lief interim relief. The guidelinesy for'. they of interim relief are odfntlaitned in" thevvproyiso to Section 35F, namely, i .VreliefE"-§iiiill:Vl'b.e granted only if there would be undue i to person if he is asked to pay excise " or Unless, therefore, it can be shown theappellant that undue hardship would be , cyausedihlf he is required to pay the duty or penalty i,thef_«appellate authorities would be entitled to refrain granting any interim relief. What is undue I 2 CEA 29.' 2008 hardship would depend upon the facts of eacVh',',:.:"'»,.. casefi " i i In Domats Civil Law (Volume 1) stated as under:
''It is the duty or to apply not only to what appears to__i:be:_regvulated«byAtheir express disposition's,,,_"b_nJt to a.!lA,the_tciases where a just application of m.ao'7ej',~,a'r:d which appear to he .,conj'p'rVe'hend.edV:f'_e_itit'er. within the consequencesi§jt':h.at g.aVthereVd,i'rom it".
In rtoii'ht'»».t2;s-- [1379] Lieichsneery Division 438] this is what JVess'e.! the powers of the Court of appeal to _grant"stay at'.*pag.e V 4443:
_ :i?fit--,ap.pears to me on principle that the Court p'os'sess that jurisdiction, because the '' .princip.lei':--,,.which underlies all orders for the _ p're.s:eryation of property pending litigation is this, it " thgatthe successful party in the litigation, that is, the 'intimately successful party, is to reap the fruits of that litigation, and not obtain merely a barren 2 3 CEA 29/2008 success". That principle, as it appears to me,__.__ applies as much to the Court of first instanceiffl". before the first trial, and to the Court of Ap~pealg~:'._'__;"'.j' before the second trial, as to the Court last instance before the hearing of th_e».final'appea'l"';t.-'fittg
7. The right of appeal is"a..._VsubstanVtive question of fact and law are at review by the Appellate Tribunal. rule that an express grant of st.atutory_-pcwegr by necessary implications Va|l__re;asoVna'b'le means to make such grantef1'ecfivv_e.V'At§ne authoriity is the duty in proper cases to rnaike staying proceedings as will preventthe appeal, if_succ.essful from being rendered nugatory.
if'ThAere'f:o:fe,2..ythe'vappel'late"TrVibunal has the power to grant stay as inc.identa.l to its appellate jurisdiction. When the T parliarrtent vi.ntro:du£ced the amendment restricting the operation «r.i,i'_j'§v._«,ot..the stayotder, they recognized this settled legal position that t--.thieAAap_pje'llate Tribunal has the power to grant an order of stay eyerf in the absence of a specific provision conferring such 15 CEA 29/2008 Provided that, where an order of stay is made in any proceeding reiating to an appeai filed V __ under sub--section (1) of Section 358. the Appeiiategx Q Tribunal shali dispose of the appeai within a p€_fi_od" c A4 ' of one hundred and eighty days from the_d_ate.,:.oi[ff i such order:
Provided further that_if_ suchappeai " SW disposed of withinthe period-..,,specifiedin proviso, the stay order shaii,_ori*the».,expiiy*oilhati period, stand vacated'i--ii" _
9. By reading of the vaieriesaiid _a.me'nde;dQpiovision, it is clear, a time" i'i'r'a*.itio-if 'th:re:e-- n'ion't~hs 'is"'pre'sVcribed for hearing and deciding mcapcea: iile?j"unidei--S:ection 35(3) of the Act. In such an appeai, if ani"o.rder,oij._stay been granted by the Tribunal, gtiie_Afirsi':,_§ro§,:iAso..,cast"an'e~b«iigation on the Tribunai to dispose of y*tri:tiii:n'i~a:iperiod of 180 days from the date of the stay .v,order.* ,i'niiother'Vi§yVo.r;ds, Section 2(A) provides a three years limit ..m.S,i'_j:,.ifo'r.,,disposaiV"of the appeai under Section 35(3) whereas 180 time limit prescribed for dispose? of the very same it if an order of stay is granted in such an appeal. In k\/.
I6 CEA 29/2008
order to see that after obtaining a stay order, the assessee ,5vh0 has the benefit of an order of stay wouid not V. proceedings, the legisiature thought of iratrodociizgii H proviso with an intention of curbing deiayitng'tactics-;inAi,di«s_pos'a'| of the appeal. Therefore, it is expgressty:4prov--i,CAied, is not disposed of within 180 days'ii«f:r;om th.e"d_ate."ofVsaid order, on expiry of that pe.rio'd,, Vacated. The sole object being to appeais on merits within 18C)' thos assessee from induiging any this provision was
10. the case of Commissioner of CUS & _C.Ex.,4"';~'ih'n;._e.da£§égd"~~,;V5.Komar Cotton Mills Private :,t:TLirnitec}.,/'reported in'H'200S(180) 5,1,. T. 434 (so) deaiing s'pecViVti_caiiy,,jwithi tihieia..mended provision, heid as under:
The provision has clearty been made for 'the purpose of curbing the diiatory tactics of' A A, 'those assessees who, having got an interim order V, 17 CEA 29/2008 in their favour, seek to continue the interim order by delaying the disposal of the proceedings. Thus, depriving the revenue not only of the benefit of assessed value but also a decision on points wfriich_::" A may have impact on other pending ma_tters_.' " V' ~-- (5 ,
4. The Tribunal which was then knowgas '~ it Customs, Excise Gold (Conitro:l";-.Appellate' (CEGAT) came to the c_onclusi_on amendment did not stay. ordersdwyhich vvere passed prior to the date o'fA,_co'r'n:i'n'g i,.«i_to of the amendment_an:d valsoggheld ..arrtehdment did not in anyuiiay 'the'-pow.eis theV;Tribtinal to Qrant 'stay *months;-
» l3'urir1"gfA'thearjeindency of the appeal before this Clouh', the 'matter was conferred to a Bench 'of'vt--h--e'"i"ribunal. The Larger Bench A' ,,''has .,bvy.,its,l"de_cision reported in 2004069) E.i..T. ._ "257 i'up'i_i_e_id.i',;t'hie view impugned in this case. The Ad.ecis_ivon.;'.i'ofi the Larger Bench has not been chafienged by the Department being of the view it that repeated special leave petition raising the same issue was unnecessary".
18 CEA 29/3008 'it. it is aiso usefui to refer to a decision of the income Tax Appeliate Tribunal, whiie considering an identicai.V'ri»s:sia_e relating to the power of the Tribunat to grant furtherf_:'stay_'V:-aifiierrg _ the expiry of six months since passing the first_ordierj~oi"say,_ in," '*~ Centre for Women 's Development Studies,_-~~~,!rs-- '4De1p1jty4Urretcte:i_ié of Income Tax, which reads as fciiilcwsz "On a careiui" perusai"' relevant" new provisions in the 'atnCfi.V:ivator¢aAaid.V judicial pronouncements, we-are. of the Opinion that sub~se'c't'i'o,n:' (ram 'was";ins'erte§d" vi-n~§ection 254 to curtaii .ie'r*1su,re' disposal of the pending. reasonable time frame.
There isno i'i1t_enti'on"ef:'t'h.e" Legislature to curtain or withdraw«.the po:~é.--g otiithe Tribunal for granting a '_ _e;<ceeding.a___period of six months. Had it been of the Legislature, there would be a " Va'im:e~ndment in the Act to this effect __b'ecai_iSe:'3~.i_ttithe powers of the Tribunal for granting the exceeding a period of six months are * siwithvdrawn by this amendment, the object of "*».in*iparting justice by the Tribunai cannot be achieved even in those cases where the assessee I 9 CEA 29/2008 has co-operated with the Tribunal to its full extent and the hearing is in progress. We, therefore, are:
of the considered View that the Tribunal has po'éS.re'r'*« *' to grant a further stay on the expiry of six.mori'ths"--.:' . A of earlier stay if the facts and r;':'ircu:n1stvan_ces--s:o--,._:'""
demand".
Affirming the said view, a E3uenc'h"in:i_the case of IPCL ----vs-- Commissioner...fiofA "_V_Ce;nt;rai.._f l/adodara 2004(169) E.L.T. 26?vobsery.edi:as.u'nder_:
"V\I§e"fi'r'_adV :.'l_f:h_.emiws'-7F'harn1ace uticals the Benchl"'il'r'as':i:ytal{é§ri* note of"'_'t'i"i'e'": fact that it is practicaiiy not"possibvl4é--e.:t:d--dispose of the appeals pending. Bench of the Tribunal withi.ngg18ij"d.%YS:.° The é'B:ench has also suggested '~'~I':£:35l:i1E?A*-s'i9lT'$9dY i'"0'r"t*he' problem. In this connection, A ' Lfwe mayi i3bse.r_ve that similar situation can arise in ._ "other"3'e_nches'.a|so where an appeal posted within ii-80 could not be taken up for different reasons. it may be due to non-availability of time 'for.gthe Bench or due to non-availability of the Bejnch itself. Unless the Tribunal has the power to extend stay beyond 180 days, the assessee's 20 CEA 29/2008 interest wili be in jeopardy for no fault of his. Evenf"~«,g the order granting exemption from pre--deposit will "be rendered nugatory as the assessee *' compeiied to satisfy the demand.
dependency of the appeal. it judicial view that no party shouldiabyeZpreiudiced 'izlue "
to action or inaction on"ithe._part'v-of (Rajkumar Dey and others'Vi4i?~y;s- _Tara'pa_da': oéy) 1987(4) SCC 398' Q
12. Therefore, it is'citeiari_th:at the,_sub section though was introduced in4ter'roreni"'cari~not4'b{§»«_cons'tru'ed as punishing the assesseie be compieteiy beyond their contr'oi,_ "'Fhe'behind this amendment is to ensure :.speedy°d.i:spos'al of the appeals where orders of stay dutympayabie to the revenue are with--held. Theirs-aid.proyisi'on.s act in terrorem preventing the assessee fromideiaying. the disposal of the appeal. But if the assesses is faiuiitiand the Tribunai for reasons beyond its control is uriabl»e..to dispose of the appeal within 180 days from the date 'mo-fi.tl1§e grant of order of stay, the Tribunal cannot be held to be V 2E CEA 29/2008 poweriess to extend the order of stay granted on an appiication being made for extension of stay by the assessee,_fli\Zie'rei.y"« because there is no express provision stay granted eartier, it cannot be said appeiiajtei has no power to extend the time._ Prior.
absence of any specific provision'i"sist:was Htfsthe Tribunal is heid to posse'ss.y_the«'iipowVer._V'Vto"..grantistay; on the same anaiogy, the Tribunaiiis'-helditofy'Vpos.seAs3srp.ower to extend the order of stay;_'g'r'ejht'ed,. the iinhotidisposed of within 180 days froni t_hej_"d;_ite of side.
13.5.' |=n'suc'h~ if an appiication is made by the assessee',..:he_Trib_uVriaI"has the power to extend the order of .~v~.stay.1iZhe__iorder of "sta_y__is not automatic. Therefore, even an V7ordVer"of e_xIensio~n_gof stay need not be automatic. When an appiication '£si'cjfi!Ve=d for extension of stay, the Tribunal has to 'appiy its. rhindéito find out for what reasons, the appeal is not ffisposed within statutory period of 180 days. if the assessee ..._"'i'~conduct is not the cause for the appeal not being disposed of, \,,// CEA 29/2008 then the assessee cannot be denied the benefit of extension of the stay order. Expressly they have not taken of the Tribunal to extend the period of stay granted;~..:To1.A_exteno the period of stay granted no expressprov.is'ion-I"is.:_':re.qu:iredy, Once the power to grant stay exists andis concedeci, pcm/;.'e"i' r to extend the period of stay foiiovvs'»trom It is settied law that no party should duevitowaction or inaction on the partof the cjrcitamstances, the contention of of express provision co nferri to extend the stay order, thve"i'ri"btira%a| stay is without any substance; Accordangryjmrie.ahswer point No.(ii). ' to the facts of this case, admittedly after the"expiry'Voi7--V'fi'8fi=days from the order of stay, when recovery ' 'proceedings. are initiated by the revenue, the assessee was iciornpel-!.ed to fiie an application for extension of stay. Without '"'--___"'icon'sidering the said application on merits, the Tribunal K/.
23 CEA 29/ 2008 proceeded to hold that once an order of stay is granted.g'after hearing both the parties, the said stay order will be till the disposal of the appeal on merits, relying f of the Gujarat High Court referred -to .jlt"~i_s of misreading of the judgement.VgTh'at posit.io'n" p'rio'rjtoVV'V the amendment. In the aforesaid"i's.';§é_ujarat of stay was granted in the year-..t9EiB'Hand'ltherefore, that case, the Gujarat High Court :n.pvlding.},vhen once an order of stay is after he.aring:::l§.gjth.._t.i§LT.éparties, there is no stay of recovery already recovery shall remain valid till finayli 'disp'osaiiA:fef:_'the"':'a'ppea| and has refrained the Departm*e~nt from.,Vpr'ocee'ding. with the recovery proceedings I-'i_pe'ndingV.disposa.lg_of theuappeal on merits. in the very same guidgfemefritytheyhave also pointed out the difference after the f _amend.ment.' .;Therefore, after the amendment, the stay order if"'::v".'y"'gVgranted comes to an end at the expiry of 180"' day from the date' cfthe stay order. Rightiy the assessee filed an application ':"for--~extens§on. The Tribunal ought to have considered the 2-4 CEA 29/2008 application on merits and then should have passecfthe appropriate orders. Therefore, the order Tribunal is exfacie, illegal and is liable to be set_asi:de.. lrlsvylarit of the same, it is a matter which has be"lern«anir}'ed_i the Tribunal for disposal in accordance 'vriftrlr. law light oil it the aforesaid observations.
1 5. However, till saidapplication on merits, the orderof stay- be in force and the reVe.F1.Ué>" _trojrrl"V.'proceeding with the recovery of_t_hVeE iénpugned order. Hence, we pass the to T h _ __:'Th_e a'ppea._|._.isallowed.
' ;"{«ll)A »./l.y:'The':"ilmpugned order passed by the Tribunal is V t aside.
till.) application for stay filed by the assessee is remanded back to the Tribunal for fresh
-1-av'.
(IV) 25 CEA 29/2008 consideration in the light of the observations made above.
The said exercise will be done within at.pe4'r_§:o:(:__i three months from the date of recei.;:3§t:'ot. this order.
Tiil the said app|icat!,on_ is disoosed n'te?§*ts','< V the stay order granted e'ar[ier_woa§'ld.b'e -in force. Parties to bear the_ir~ownf'}bosts§.f_ as . safé Efiéga salg
-aw! /; sssss _ f Iudg é