CIR NO.756/72/2003-CX, DT. 16/10/2003

Extension of stay by CEGAT /CESTAT beyond 180 days

Please refer to Boards Circular No. 738/54/2003-CX dated 19/08/2003, on the above subject.

Vide the said Circular it was advised to file Reference Application / Appeal before the jurisdictional High Courts against the Tribunal"s orders on the above subject.  However, on re-examination of the matter, it is noticed that filing of a Reference Application / Appeal before the High Court in such cases may not be maintainable as such orders are not passed under Section 35C of the Central Excise Act, 1944. The above Circular is therefore, hereby withdrawn.

In the meantime, West Zonal Bench of the Tribunal, vide their Order No. CII / 2336-2350/WZB/2003 dated 26/09/2003, in the case of M/s Themis Pharmaceuticals & Ors. vs. CCE, Mumbai & Anr. has held that the Tribunal has no power to grant extension of stay beyond 180 days after enactment of the Finance Act, 2003, but that Tribunal"s poser to waive pre-deposit during the pendency of appeal remains unaltered since not amendment has been made to Section 35F.

All the Commissioner under your charge may please be advised accordingly. As such orders of the Tribunal are only interim orders, individual cases may be examined on merits and wherever considered necessary, proposals for filing SLPs before the Hon"ble Supreme Court may be sent to the Board office.

Sd/-
(B.K. Gupta)
Joint Secretary (Review)

[F.No. 387(W)/64/2003-JC]

see CIR NO.797/30/2004-CX, DT. 06/09/2004)

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