2013 (9) TMI 772 - HC - Central Excise

Application for Condonation of Delay Held that - A perusal of the order would reveal that the application had been dismissed but without referring to reasons contained in the application for condonation of delay by referring to legality of consideration by the Committee of Commissioners u/s 35-E of the Act - The question whether consideration by the Committee of Commissioners was legal or valid, was a matter to be considered only after the application for condonation of delay was accepted as an appeal cannot be said to be properly constituted till delay was not condoned. The judgments pressed into service by counsel for the respondent pertain to adjudication of an appeal on merits wherein, it was found, as a matter of fact, that consideration by the Committee of Commissioners was not in consonance with provisions of Section 35-E of the Act and therefore, dismissal of the appeal, by the Tribunal, was held to be valid and in accordance with law - The situation in the present appeal is entirely different as the question whether the appeal has been validly filed was not before the Tribunal - The controversy before the Tribunal was whether the appellant had shown sufficient cause for delay there was no option but to allow the appeal, set aside the order and restore the application for condonation of delay to the Tribunal for adjudication afresh and in accordance with law within one month from the parties putting in appearance before it.

Summary

Issues:
Challenge to correctness of order by the Tribunal dismissing application for condonation of delay in filing the appeal.

Analysis:
The appeal was filed after an opinion was recorded in accordance with Section 35-E of the Central Excise Act, 1944, and was accompanied by an application for condonation of 199 days delay as required by Section 35-B(5) of the Act. The Tribunal dismissed the appeal after issuing notice on the application for condonation of delay. The appellant argued that the Tribunal should have only considered sufficient cause for delay at this stage and not the merits of the appeal. The appellant contended that the application for condonation of delay was rejected without considering the facts, and thus requested setting aside the impugned order and remitting the matter to the Tribunal.

The respondent argued that the Tribunal did not commit any error and that the legality of the reference made under Section 35-E of the Act determined the revenue's right to file an application for condonation of delay. The Tribunal held the reference illegal, hence, no delay could be condoned. The respondent relied on previous judgments to support this argument.

Upon hearing both parties and examining the statutory provisions governing condonation of delay and filing of appeals, the Court found that the Committee of Commissioners decided to file an appeal before the Tribunal to address the grievance of revenue loss due to escaped assessment. The appeal was delayed by 199 days, and a separate application for condonation of delay was filed under Section 35-B(5) of the Act. The Tribunal dismissed the application and the appeal without referencing the reasons for condonation of delay or the legality of the Committee's consideration under Section 35-E of the Act. The Court emphasized that the legality of the appeal filing process should be determined after the delay is condoned. The judgments cited by the respondent related to appeals dismissed on merits due to improper consideration by the Committee of Commissioners, which was not the issue in the present case. Therefore, the Court allowed the appeal, set aside the impugned order, and directed the Tribunal to reexamine the application for condonation of delay within one month.

The Court clarified that its order did not express an opinion on the sufficiency of the cause for delay or the merits of the controversy, focusing solely on the procedural aspect of condonation of delay and appeal filing.