2008 (10) TMI 397 - AT - Central Excise

Appeal by Department - Maintainability of - Adjudication order - Limitation for review - Section 35-E of the Central Excise Act, 1944

Summary

Issues Involved:
1. Jurisdiction and limitation period for filing an appeal under Section 35-E of the Central Excise Act, 1944.
2. Validity of the review order passed by the Committee of Chief Commissioners.
3. Tribunal's authority to condone delay in review decisions.
4. Requirement of personal appearance of a Central Board of Excise & Customs member for deposition.

Detailed Analysis:

1. Jurisdiction and Limitation Period for Filing an Appeal:
The appeal arises from the order-in-original of the Commissioner of Central Excise & Customs, Bhubaneswar. According to Section 35-E of the Central Excise Act, 1944, a departmental appeal against the order of the Commissioner can be filed on the direction of the Committee of Chief Commissioners. The dispute centers on whether the appeal was filed within the prescribed period of one year from the date of the order. The Commissioner signed the order on 18-5-2006, and the appeal was filed on 9-7-2007. The respondent contended that the decision of the Committee was beyond the one-year limit, making the appeal non-maintainable. The Tribunal clarified that the appeal was filed within the prescribed period of three months from the receipt of the authorization under Section 35-E(4).

2. Validity of the Review Order Passed by the Committee of Chief Commissioners:
The Committee of Chief Commissioners, comprising members from Bhubaneswar and Lucknow, reviewed the order. The Chief Commissioner of Central Excise, Bhubaneswar, decided on 18-5-2007 that an appeal should be filed. However, the Chief Commissioner of Central Excise, Lucknow, gave his consent only on 28-5-2007, after the one-year period had expired. The Tribunal held that the decision-making process by a multi-member body is not complete until all members have signed. Therefore, the review order was not passed within the prescribed period, rendering it invalid.

3. Tribunal's Authority to Condon Delay in Review Decisions:
The Department argued that the Tribunal has inherent powers to condone the delay in taking the decision by the Committee of Chief Commissioners. However, the Tribunal clarified that it can only condone the delay in filing the appeal before it, not in the decision-making process of the Committee. The Tribunal cited the decision of the Larger Bench in Commissioner of Central Excise, Mumbai v. AZO Dye Chem, which supports the view that there is no power of condonation for delays in the review decision under Section 35-E.

4. Requirement of Personal Appearance of a Central Board of Excise & Customs Member for Deposition:
The Tribunal addressed Misc. Appl. No. E/290/08, which sought to recall the order directing the personal appearance of a Member of the Central Board of Excise & Customs for deposition. The Tribunal found no occasion to direct such personal appearance and recalled the order dated 14-7-2008.

Conclusion:
The Tribunal concluded that the appeal was maintainable as it was filed within the prescribed period of three months from the receipt of the authorization, despite the review order being passed beyond the one-year limit. The Tribunal emphasized that it does not have the jurisdiction to adjudicate the validity of the review order and authorization. The miscellaneous applications were disposed of accordingly, with the order for personal appearance being recalled.