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Collector of Central Excise Vs. Jardine Victor Ltd. - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Calcutta
Decided On
Reported in(1987)(31)ELT135Tri(Kol.)kata
AppellantCollector of Central Excise
RespondentJardine Victor Ltd.
Excerpt:
.....aggrieved from order no. 352/br/82, dated the 10th day of july, 1984 passed by the collector (appeals) central excise, calcutta. the said appeal along with a letter of authorisation under section 35a(2) of the central excises & salt act, 1944 was presented in the registry on the 27th day of october, 1984 and is registered with the registry vide appeal no. ed/cal/291/84.simultaneously, a stay petition was also presented in the registry.2. shri a.k. sarkar, the learned sdr has appeared on behalf of the appellant, he has pleaded that the stay should be granted. later on- he pleaded that the stay petition is misconceived. he has submitted that the revenue was under the honest belief that the stay petition is to be filed along with the appeal; otherwise the appeal will not be.....
Judgment:
1. Collector of Central Excise, 4th Floor, C.R. Building, Patna-800001 has filed an appeal being aggrieved from order No. 352/BR/82, dated the 10th day of July, 1984 passed by the Collector (Appeals) Central Excise, Calcutta. The said appeal along with a letter of authorisation under Section 35A(2) of the Central Excises & Salt Act, 1944 was presented in the Registry on the 27th day of October, 1984 and is registered with the Registry vide Appeal No. ED/Cal/291/84.

Simultaneously, a stay petition was also presented in the Registry.

2. Shri A.K. Sarkar, the learned SDR has appeared on behalf of the appellant, He has pleaded that the stay should be granted. Later on- he pleaded that the stay petition is misconceived. He has submitted that the revenue was under the honest belief that the stay petition is to be filed along with the appeal; otherwise the appeal will not be admitted.

3. Shri K.K. Banerjee, the learned Advocate has appeared on behalf of the respondent. He has pleaded that the stay petition should be dismissed.

He has also pleaded that the Revenue should have granted the refund to the appellant and the revenue should honour the order passed by the Collector (Appeals) and consequential effects should be given to the order passed by the Collector (Appeals). He has pleaded for the dismissal of the stay petition filed by the Revenue.

4. After hearing both the sides and going through the facts and circumstances of the case, we would like to observe that no stay petition by the revenue lies under Section 35F of the Central Excises & Salt Act, 1944. Section 35F of the Central Excises & Salt Act, 1944 is reproduced as under:- "SECTION 35F. Deposit, pending appeal, of duty demanded or penalty levied :- Where in any appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect of gods which are not under the control of Central Excise authorities or by penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied : Provided that where in any particular case, the Collector (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the Collector (Appeals) or, as the case may be, the Appellate Tribunal, may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue." 5. A simple reading of Section 35F shows that any person desirous of appealing against such decisions or order shall pending the appeal deposit with the adjudicating authority the duty demanded or the penalty levied. The Appellate Tribunal or the Collector (Appeals) may dispense with such deposit subject to such conditions as the Tribunal or Collector (Appeals) may deem it fit to impose so as to safeguard the interest of the revenue after his satisfaction that there is undue hardship in the case. In the instant case, the revenue has filed appeal and the revenue is not supposed to deposit anything before the adjudicating authority and as such no stay application from revenue lies under Section 35F of the Central Excises & Salt Act, 19W. This does not mean that this court viz. Tribunal cannot grant stay in any matter where the revenue is the appellant. This court can pass any order or can grant stay in respect of any matter connected with the appeal while exercising its inherent powers as per Hon'ble Supreme Court's judgment in the case of ITO v. Md. Koohni reported in (1969) 71 ITR 815/AIR 1969 Supreme Court 430. The said judgment was followed by the Hon'ble Patna High-Court in the case of Pooranmal Kuntia v. I.T.O.reported in 98 ITR 39. In the case of ITO v. Md. Koonhi, the Hon'ble Supreme Court had held that an Income-Tax Tribunal is not a court but it exercises judicial powers. The Tribunal's powers in dealing with appeals ace of the widest amplitude and have in some cases been held similar |Q be identical with, the powers of an Appellate Court under the Civil Procedure Code. In Domat's Civil Law, Cushing's Edition, Vol.1 at page 88, it has been stated : "It is the duty of the Judges to apply the laws, not only to what appears to be regulated by their express dispositions but to all the cases where a just application of them may be made, and which appear to be comprehended either within the consequences that may be gathered from it." Maxwell on Interpretation of Statutes, Eleventh Edition contains a statement at p. 350 that "where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution. Cui jurisdictio data est, ea quoqe concessa esse vindentur, sine quibus jurisdictio explicari non potuit." An instance is given based on Ex Parte, Martin, (1879) 4 QBD 212 at p. 419 that "where an inferior court is empowered to grant an injunction, the power of punishing disobedience to it by commitment is impliedly conveyed by the enactment, for the power would be useless if it" could not be enforced." The provisions of Section 254(1) of Income-Tax, Act, 1961 as well as the provisions of Section 35C(1) of Central Excises & Salt Act, 1944 are almost-similar, which are, reproduced as under :- "254. (1) The Appellate Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit." "(1) The Appellate Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or annulling the decision or order appealed against or may refer the case back to the authority which passed such decision or order with such directions as the Appellate Tribunal may think fit, for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary." A comparative study of both the sections shows that the powers of the Tribunal are almost similar. The powers of the Customs Excise & Gold (Control) Appellate Tribunal are much wider as compared to the powers of the Tribunal under the Income-Tax Act, 1961.

6. With these observations, the stay application filed by the Revenue is rejected.


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