2011 (2) TMI 544 - HC - Central Excise

Condonation of delay - Rectification of mistakes - It was found that the certified copy of the CESTAT Final Order was received by revenue on 17-9-2007 and the revenue filed the application for rectification of mistake on 10-12-2008 beyond the six months period prescribed under law for filing such a rectification application - In the instant case, after the order of the Tribunal is passed, the revenue has refunded the money to the assessee - t is only on rejection of the duty paid by the assessee and nearly after 14 months the application for rectification is made. The delay itself would be around 8 months. Therefore, seen from both the angles, we do not see any justification to entertain this appeal - Appeal is dismissed

Summary

Issues:
- Challenge to Tribunal's order on condonation of delay in filing rectification application under Section 35C(2) of the Central Excise Act, 1944.
- Interpretation of Section 35C(2) regarding rectification of mistakes by the Appellate Tribunal.
- Consideration of the applicability of the Limitation Act and the Tribunal's inherent power to condone delay in filing rectification applications.

Analysis:

The High Court of Karnataka heard an appeal by the revenue challenging the Tribunal's order dismissing their application for condonation of delay in filing a rectification application under Section 35C(2) of the Central Excise Act, 1944. The Tribunal held that it lacked the power to condone the delay beyond the prescribed six-month period. The revenue contended that the Tribunal had inherent power to condone the delay, citing a judgment of the Apex Court. However, the Tribunal disagreed, leading to the revenue's appeal before the High Court.

Section 35C(2) of the Act empowers the Appellate Tribunal to rectify any mistake apparent from the record within six months from the date of the order. The provision does not explicitly allow for the condonation of delay in filing rectification applications. The core issue for consideration was whether the Tribunal could invoke the provisions of the Limitation Act, particularly Section 5, or exercise its inherent power to condone such delays.

Referring to a judgment by a three-Judge Bench of the Apex Court in a similar matter, the High Court emphasized the legislative intent behind the Central Excise Act. The Court highlighted that the Act is intended to be a complete code governing matters within its purview, indicating that the provisions of the Limitation Act should not be invoked to supplement the Act. The Court concluded that the Tribunal's decision to reject the rectification application based on the time bar was in line with the legislative intent and did not amount to irregularity.

In light of the Supreme Court's judgment and the legislative intent behind the Central Excise Act, the High Court upheld the Tribunal's decision and dismissed the revenue's appeal. The Court noted the delay in applying for rectification and the subsequent refund of money to the assessee by the revenue, emphasizing the lack of justification to entertain the appeal.

Therefore, the High Court affirmed the Tribunal's decision, highlighting the importance of respecting legislative intent and upholding the prescribed time limits under the Central Excise Act, ultimately dismissing the revenue's appeal.