2009 (6) TMI 731 - AT - Central Excise

Appeal to Appellate Tribunal - Limitation - Condonation of delay - Order - Merger of - Settlement Commission

Issues Involved:
1. Condonation of delay in filing appeals.
2. Merger of the order dated 28th February 2007 with the Settlement Commission's order.
3. Jurisdiction and powers of the Settlement Commission under the Central Excise Act, 1944.
4. Impact of the Bombay High Court's order on the proceedings before the Settlement Commission.

Detailed Analysis:

1. Condonation of Delay in Filing Appeals:
The applications for condonation of delay were filed on 16th February 2009 against the order passed by the Commissioner of Central Excise and Customs, Nasik on 28th February 2007. The applicants argued that the delay occurred because they were pursuing a settlement before the Settlement Commission. The Tribunal noted that the chronology of events was not disputed, but found no sufficient cause for the delay post the High Court's order dated 31st July 2008. The Tribunal emphasized that the applicants were aware of the High Court's order on the day it was pronounced, and there was no valid explanation for the delay in filing the appeals thereafter.

2. Merger of the Order Dated 28th February 2007 with the Settlement Commission's Order:
The applicants contended that the order dated 28th February 2007 had merged with the final order of the Settlement Commission dated 1st January 2008. However, the Tribunal rejected this argument, stating that once the High Court allowed the withdrawal of the application under Section 32E, the proceedings before the Settlement Commission were declared non-est. Consequently, the order dated 28th February 2007 could not be considered merged with the non-existent proceedings of the Settlement Commission.

3. Jurisdiction and Powers of the Settlement Commission under the Central Excise Act, 1944:
The Tribunal discussed various sections of the Central Excise Act, 1944, including Section 32E (application for settlement), Section 32F (procedure on receipt of an application), Section 32G (provisional attachment), Section 32H (reopening completed proceedings), Section 32I (powers and procedures), Section 32J (inspection of reports), Section 32K (immunity from prosecution and penalty), and Section 32L (sending a case back to the Central Excise Officer). The Tribunal clarified that the Settlement Commission acquires exclusive jurisdiction once an application is admitted, but this jurisdiction is contingent upon the cooperation of the applicant. The Tribunal noted that the applicants had not invoked the Settlement Commission's power to reopen completed proceedings under Section 32H.

4. Impact of the Bombay High Court's Order on the Proceedings Before the Settlement Commission:
The High Court's order allowed the withdrawal of the application under Section 32E and declared that the order of the Settlement Commission would not survive. The Tribunal interpreted this to mean that the proceedings before the Settlement Commission were non-est from the beginning. Therefore, the order dated 28th February 2007 by the Commissioner remained unaffected. The Tribunal also noted that the applicants did not request the High Court to direct the Settlement Commission to forward the proceedings to the Central Excise authorities or to set aside the order of the adjudicating authority.

Conclusion:
The Tribunal concluded that the applicants failed to provide a sufficient explanation for the delay in filing the appeals after 31st July 2008. Consequently, the applications for condonation of delay were dismissed. As a result, the related appeals and stay applications were also dismissed.

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