IN THE HIGH COURT AT CALCUTTA, while deciding the Writ Petition No.261 of 2008 with W.P. Nos. 1161, 230, 1016, 2428 (W) and 4006(W) OF 2008, ON 23.6.09 in re: PROMISING EXPORTS LTD vs U.O.I. it was observed as follows: -

QUOTE: It has been noted that Section 35C(2A) directs that the “Appellate Tribunal” to “hear and decide every appeal” and significantly its first proviso speaks of “an order of stay made in any proceeding relating to an appeal”. Now what is the ambit of the words “an order of stay in any proceeding relating to an appeal”. Does it include an order passed under Section 35F? Since the proviso to Section 35F speaks of, in case of “undue hardship”, dispensing with the deposit of duty demanded or penalty levied on certain conditions “pending appeal”, it is certainly a proceeding relating to an appeal filed under sub-section (1) of Section 35B as contemplated in 35C(2A). Moreover, that an order passed under 35F is a part of the proceedings in appeal is evident from the words at the outset of the said section which relates to “any appeal under this Chapter”. Further, though the words “an order of stay” or “stay order” appearing in 35C(2A) do not appear in Section 35F, it cannot but mean an order of stay passed by the Appellate Tribunal made on an application of waiver of predeposit while dispensing with the predeposit of duty demanded or penalty levied under Sec 35F which otherwise should have been deposited. Looking at the provisions, in my view, Section 35C(2A) has to be interpreted in a manner so as to bring it in harmony with the other provisions particularly Section 35F. Intention must not be inferred solely from Section 35F if it militates against the expressed and unambiguous provisions in 35C(2a).

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HIGH COURT ORDERS

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HIGH COURT JUDGEMENTS HARMONY, ORDER OF STAY, PENDING APPEAL, RELATING TO AN APPEAL, UNDUE HARDSHIP