2012 (11) TMI 242 - AT - Central Excise

Condonation of delay in filing of appeal u/s 35 E(4) Delay of 63 days Whether there is a provision to condone the delay in filing of appeal u/s 35E(4) with Tribunal - The review order u/s 35E(1) passed on 31/5/2011 was within the limitation period of 3 months u/s 35 E(3) There was delay in filing of appeal on the basis of review order u/s 35 E(4) Held that - Following the decision in case of AZO DYE CHEM (2000 (7) TMI 107 - CEGAT, COURT NO. III, NEW DELHI) that Revenue s application having been filed u/s 35 E(4) after expiry of period of one month from the date of communication of the review order, is not maintainable and can not be admitted as an appeal as there is no provision for condoning the delay in filing of this review appeal u/s 35 E(4). Issue decides in favour of assessee

Issues Involved:
1. Denial of benefit of exemption notification No.25/05-Cus dated 1.3.2005.
2. Confiscation of imported goods under Section 111(o) of the Customs Act, 1962.
3. Imposition of penalty under Section 112(a) read with Section 114A of the Customs Act, 1962.
4. Condonation of delay in filing the appeal under Section 35E(4) of the Central Excise Act, 1944.

Issue-wise Detailed Analysis:

1. Denial of Benefit of Exemption Notification No.25/05-Cus Dated 1.3.2005:
The respondents, manufacturers of various types of RF cables, were accused of importing goods under false descriptions to wrongly avail duty exemption under notification No.25/05-Cus dated 1.3.2005. A show cause notice dated 22.4.2010 was issued to deny this benefit and recover customs duty amounting to Rs.4,25,16,681 under Section 28(1) of the Customs Act, 1962. However, the Commissioner, Central Excise, Delhi-III, in an order dated 28.2.2011, held that the respondents were eligible for the exemption and dropped the proceedings.

2. Confiscation of Imported Goods Under Section 111(o) of the Customs Act, 1962:
The show cause notice also called for the confiscation of the imported goods under Section 111(o) of the Customs Act, 1962. This was based on the allegation that the goods were imported under false descriptions. The Commissioner's order dated 28.2.2011, which upheld the respondents' eligibility for the exemption, effectively nullified the confiscation proceedings.

3. Imposition of Penalty Under Section 112(a) Read with Section 114A of the Customs Act, 1962:
Additionally, the show cause notice sought to impose penalties on the respondents under Section 112(a) read with Section 114A of the Customs Act, 1962, for allegedly availing the duty exemption through misrepresentation. The Commissioner's decision to drop the proceedings meant that no penalties were imposed.

4. Condonation of Delay in Filing the Appeal Under Section 35E(4) of the Central Excise Act, 1944:
The Committee of Chief Commissioners reviewed the Commissioner's order and directed filing an appeal to the Tribunal. The review order was issued on 31.5.2011, but the appeal was filed on 1.8.2011, resulting in a 63-day delay. The department argued that the delay was due to the misplacement of the file and cited the Tribunal's power to condone delays as per the judgment in CCE, Raipur Vs. Monnet Ispat & Energy Ltd.

The respondent countered that Section 35E(4) did not provide for condonation of delay and relied on the Larger Bench decision in CCE, Mumbai Vs. Azo Dye Chem, which held that the Tribunal lacks the power to condone delays for appeals filed under Section 35E(4).

The Tribunal examined the statutory provisions and relevant case law, concluding that Section 35E(4) does not allow for condonation of delays. The Tribunal upheld the Larger Bench decision in Azo Dye Chem, dismissing the application for condonation of delay and the Revenue's appeal as not maintainable.

Conclusion:
The Tribunal dismissed the Revenue's appeal and the application for condonation of delay, reinforcing that the statutory framework under Section 35E(4) does not permit condonation of delays in filing review appeals.

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