Law: Central Excise Act, (I of 1944)

Section: 358)5)

Central Excise Act (I of 1944)---S. 358(5)---Application by the assessee before Appellate Tribunal to stay the recovery of demand proceedings---Direction of High Court regarding adjudication by the Appellate Tribunal could not be carried out on account of order of Supreme Court, the effect of which had ousted the jurisdiction of Appellate Tribunal vis-a-vis the issue remanded by the High Court to the Appellate Tribunal for consideration---Appellate Tribunal, therefore, could not record any finding even upon an issue ancillary to the main appeal, because of judicial propriety---Appellate Tribunal, in circumstances, expressed its inability to grant stay to the assessee because the jurisdiction of Appellate Tribunal stood ousted even with reference to issues incidental and ancillary to the main appeal---Application was rejected by the Appellate Tribunal. 2008 PLC (C.S.) 551 and PLD 2008 Lah. 57 distinguished. ORDER The instant miscellaneous application has been filed with the prayer to stay the recovery of demand outstanding against the applicant. 2. The facts leading to the filing of this miscellaneous application, in brief, are that the Islamabad High Court vide order dated 15-5-2008 remanded the case of the applicant to this Tribunal with the observation that this Tribunal could not dismiss the appeal on the ground of limitation without considering the question whether the delay was condonable or not. Against the order, the respondent-Department filed leave to appeal before the honourable Supreme Court of Pakistan which was granted by the august Court vide its order dated 3-8-2009 to consider the following questions:- (a) Whether the Court had jurisdiction to condone the delay within the scope of section 358(5) of the Central Excise Act. (b) What is the effect of the substitution of petitioner in place of Collector of Customs (Adjudication); and (c) What effect this substitution would have on the filing of appeal as well as the limitation involved. 3. The learned counsel for the applicant vehemently pleaded for the grant of stay and stated that the honourable Supreme Court of Pakistan, while granting leave to appeal had not restrained this Tribunal to proceed…

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