2008 (1) TMI 762 - AT - Central Excise

Summary

Issues:
1. Condonation of delay in filing appeal under Section 35(1) of the Central Excise Act, 1944.
2. Request for recall of Order-in-Original No. 20/2002 dated 27-3-2002.
3. Authority to rectify mistakes in orders under the Central Excise Act.
4. Jurisdiction for rectification of mistake in orders passed by Original authority and Commissioner (Appeals).

Analysis:

Issue 1: Condonation of delay in filing appeal under Section 35(1) of the Central Excise Act, 1944:
The appeal arose from the Order-in-Appeal confirming the Additional Commissioner's communication. The appellant failed to file the appeal within the prescribed period and filed it beyond the condonable limit. The Commissioner (Appeals) rejected the appeal due to the delay, which was upheld by the Tribunal. The Tribunal noted that the Commissioner did not have the power to condone the delay, resulting in the dismissal of the appeal. The Order-in-Original No. 20/2002 dated 27-3-2002 was confirmed as a consequence.

Issue 2: Request for recall of Order-in-Original No. 20/2002 dated 27-3-2002:
The assessee sought to utilize Cenvat credit and requested the recall of the Order-in-Original. The Additional Commissioner informed that the issue was foreclosed and could not be reopened. The Commissioner (Appeals) upheld this decision, stating that the matter had already been rejected by the Tribunal in a previous order. The appellant appealed against this decision.

Issue 3: Authority to rectify mistakes in orders under the Central Excise Act:
The appellant argued that the Original authority could rectify the mistake in the order, but the Tribunal had the power to do so under Section 35C(2) of the Central Excise Act, not the Original authority. The Tribunal agreed that the Original authority lacked the power to rectify mistakes in orders, which only the Tribunal could do. The appeal was rightly dismissed by the Commissioner due to being time-barred.

Issue 4: Jurisdiction for rectification of mistake in orders passed by Original authority and Commissioner (Appeals):
The Tribunal emphasized that the Central Excise Act does not provide for rectification of mistakes in orders by the Original authority or the Commissioner (Appeals). Citing a Supreme Court judgment, it highlighted the need for exercising jurisdiction within a reasonable period. The application filed by the assessee after two years was rightly rejected, as there was no legal basis for its consideration. The appeal was deemed meritless and rejected based on these grounds.