Extension of Stay - CESTAT cannot grant stay beyond 365 days even if delay in disposal of appeal is not attributable to assessee - Assessee to be punished if Tribunal is not able to decide his appeal within one year
IF you are happy with the report we carried in DDT on Friday about the Bangalore Bench of the CESTAT laying down guidelines regarding applications for extension of stay, forget it now - the happiness is short-lived.
The Revenue must be celebrating - In a diametrically opposite decision, the Delhi Bench of the CESTAT presided over by the President held that no extension of stay could be granted by the CESTAT in the light of the provisions of Section 35C(2A) of the Central Excise Act, 1944, even if the delay in disposal of an appeal, beyond the sunset period prescribed, is not attributable to an appellant .
The Bangalore decision was delivered on 29.05.2014 and the Delhi decision on 16.06.2014. The Delhi Bench gave another decision also on similar lines.
Now there is a conflict between the decisions of Delhi and Bangalore Benches. According to the Bangalore Bench, CESTAT can grant extension of stay beyond 365 days and according to Delhi Bench, it cannot.
Which decision would prevail?
In the Department, there is a strong feeling that the Bangalore decision is per incuriam and so does not have a binding precedent. An AR for the Department told me that the Bangalore decision is superseded by the Delhi decision. When I asked him whether one bench of the Tribunal can supersede the decision of another Bench, he told me that the latter judgement will prevail and a higher order is a better precedence. Is the date of the decision that important, especially when the gap between the two decisions is less than a month? What happens if both the conflicting decisions are delivered on the same date? Do we see the time of the judgement? And has the President's Bench any higher status than that of another Bench?
Now these two applicants before the Delhi Bench will have to rush to their respective High Courts before Revenue starts its dreaded recovery proceedings. There are thousands of assessees all over the country who have got stay orders from the Tribunal and those cases are pending since 2005 - for absolutely no fault of the assessee - now they are all at the mercy of the Department.