2012 (9) TMI 1 - AT - Central Excise

Limitation alleged that assessment memorandum by the Adjudicating Authority was dated 24th September 2002 and date on which order under sub-section (2) of Section 35E of the Central Excise Act, 1944 was passed on 14th November 2003 which was beyond the period of one year prescribed under Section 35E(3) Held that - Appeal has been filed in terms of the provisions of law comprised under Section 35E(2) read with sub-section (4) thereof he failed to take note of the fact that the date of 14th November 2003 was not the date of order of review but it was the date of communication of the order of review and that the department had three months time to file the appeal from such date - order cannot be sustained and is liable to be set aside while holding that the appeal was filed within the period of limitation - matter is remanded to the Commissioner (Appeals)

Summary

Issues:
1. Appeal dismissed on the ground of limitation.
2. Dispute over the date of the review order.
3. Verification of facts and absence of annexed note sheet.
4. Interpretation of Section 35E(2) and (4) of the Central Excise Act, 1944.

Analysis:
1. The appeal was dismissed based on the limitation period prescribed under Section 35E(3) of the Central Excise Act, 1944. The Commissioner (Appeals) held that the order under Section 35E(2) was passed beyond the one-year limit, rendering the appeal time-barred.

2. The department argued that the review order date was misconstrued by the Commissioner (Appeals), asserting that the review was completed within the prescribed period. The appeal was filed within three months of the communication of the review order, not the review date itself. The Commissioner failed to consider this crucial distinction, leading to the dismissal based on a misunderstanding of the timeline.

3. Despite the absence of the annexed note sheet with the appeal, the Commissioner verified the facts in the appeal memo. The respondent contended that the lack of the note sheet should not impact the case, as the Commissioner was aware of the review process under Section 35E(2) and (3), which necessitated the appeal filing within three months of the review order communication.

4. The judgment emphasized the importance of correctly interpreting and applying Section 35E(2) and (4) of the Act. It highlighted that the appeal was filed in compliance with the statutory timeline following the communication of the review order. The failure of the Commissioner (Appeals) to recognize this led to the erroneous dismissal of the appeal. Consequently, the order was set aside, and the matter was remanded for a merit-based decision in line with the legal provisions.

This detailed analysis of the judgment showcases the key issues involved, the arguments presented by both parties, and the legal interpretation of the relevant sections of the Central Excise Act, ultimately leading to the decision to set aside the dismissal based on limitation and remand the case for further consideration on its merits.