Unitech Prefab Ltd. Vs. Commissioner of C. Ex.

Unitech Prefab Ltd. vs Commissioner of C. Ex.

Type Court Judgment Court Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai Decided Sep 26, 2003

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Citation: sooperkanoon.com/32453
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Judge: K Kumar, S T C.
Decided On: Sep 26, 2003
Subject: Service Tax

Case Summary

AI-generated summary - not the official court judgment text.

Service Tax

Key legal issue: Service Tax

Parties & Advocates

Appellant / Petitioner

Unitech Prefab Ltd.

Respondent

Commissioner of C. Ex.

Legal References

Reported In: (2003)(158)ELT330Tri(Mum.)bai

Excerpt

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.

Full Judgment

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.

Same Court & Year Customs Excise and Service Tax Appellate Tribunal CESTAT Mumb... Same Parties Unitech Prefab Ltd. vs Commissioner of C. Ex. Same Subject Service Tax Same Judge K Kumar, S T C.