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Coercive action when appeal and stay applications are pending before Tribunal - HC directs Tribunal to dispose of Stay Application within two months and till such time Department is restrained from taking action

By TIOL News Service

CHENNAI, OCT 28, 2011: PETITIONER filed an Appeal before CESTAT against an Order passed by the Commissioner of Central Excise. Stay Application was also filed and was posted on 29.08.2011. There was no sitting of the Bench on 29.08.2011 and the matter was adjourned to 14.09.2011. There was no sitting of the Bench on 14.09.2011 and the matter was adjourned. In the meanwhile Department threatened to take coercive action on the ground that six months time had expired from the date of filing the Stay Application.

The Court observed that when the petitioner has taken the required steps in time and when the Stay Application has not taken up by the Tribunal for no fault of the Petitioner and when the Stay Application still pending before the Tribunal, the Authorities need not take coercive steps. The Bar also brought to the notice of the Court that there is vacancy with reference to the judicial member of the Tribunal and hence there is no regular sitting of the Bench of the Tribunal. Counsel for the Department also fairly admitted that there is no regular sitting of the Bench in the Tribunal and the Counsel also did not dispute the fact that Stay Petitioner filed by the Petitioner has not been taken up due to no regular sitting of the Bench.

Under these circumstances the Court directed the Tribunal to dispose off the Stay Application in the Appeal filed by the Petitioner within a period of two months and till such time the Department is restrained from taking any further action.

The Court further observed that it was brought to the notice of the Court that in other matter also there was no regular sitting of the Bench and number of matters are pending in the Tribunal. In view of this, the Court directed the respondent to take steps to bring to the notice of the authority concerned to fill up the vacancy in the Tribunal.

(See 2011-TIOL-670-HC-MAD-CX in 'Excise')


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