2013 (12) TMI 930 - AT - Central Excise

Time-barred appeal - Branded Chewing Tobacco cleared in the guise of unbranded Chewing Tobacco without payment of duty Held that - The Adjudicating authority also observed that the adjudication proceeding was initiated only on the basis of documents available with the department and copies of which have been supplied to the department - the appellant wilfully protracted the proceeding on one pretext or the other - after the de novo adjudication order was passed, the appellants did not approach to the Commissioner (Appeals) as provided under Section 35(1) of the Act - The de novo Adjudication indicates that any person remain himself aggrieved by the order may appeal against the same to the Commissioner (Appeals) - the Tribunal has not given any observation on condonation of delay of filing of appeals before the Commissioner (Appeals). Following Singh Enterprises Vs Commissioner of Central Excise, Jamshedpur 2007 (12) TMI 11 - SUPREME COURT OF INDIA - Commissioner (Appeals) has no power to condone the appeal beyond the stipulated period - The language used makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning delay only upto 30 days after the expiry of 60 days which is the normal period for preferring appeal - there is complete exclusion of Section 5 of the Limitation Act - the appeals were filed beyond the stipulated period under proviso to Section 35(1) of the Act, 1944 Decided against Assessee.

Summary

Issues:
- Rejection of appeals by Commissioner (Appeals) as time-barred
- Allegations of clandestine removal of branded Chewing Tobacco
- Non-compliance with Tribunal's order and delay in approaching the Commissioner (Appeals)
- Applicability of provisions regarding condonation of delay in filing appeals

Analysis:

The judgment revolves around the rejection of appeals by the Commissioner (Appeals) as time-barred due to the alleged clandestine removal of branded Chewing Tobacco by the appellants. The appellants, engaged in manufacturing Chewing Tobacco, were accused of clearing branded products as unbranded without paying duty. The appeals were filed against demands of duty, interest, and penalties under various sections of the Central Excise Act, 1944. The senior counsel for the appellants argued that the appeal was rejected without considering the facts, emphasizing the failure to supply relied-upon documents during adjudication. The Revenue's representative supported the time-barred decision citing relevant legal precedents.

The Tribunal observed that the demand was confirmed without supplying necessary documents due to some being misplaced during office shifting. It noted that the appellants delayed proceedings and failed to approach the Commissioner (Appeals) after the de novo adjudication order. The Tribunal dismissed the appellants' miscellaneous application, emphasizing the proper channel of appeals. The senior counsel contended that the original authority did not comply with the Tribunal's direction, seeking implementation through the Tribunal. However, the Tribunal highlighted the availability of appeal remedy under Section 35(1) of the Act.

Regarding the condonation of delay, the Tribunal referenced the Supreme Court's decision in Singh Enterprises, emphasizing the limitations on the Commissioner (Appeals) to condone delays beyond the statutory period. As the appeals were filed beyond the stipulated period, the Tribunal upheld the time-barred dismissal by the Commissioner (Appeals). Ultimately, the Tribunal found no infirmity in the Commissioner's order, leading to the dismissal of all appeals and the disposal of stay applications.

In conclusion, the judgment addresses issues of time-barred appeals, clandestine removal allegations, non-compliance with Tribunal orders, and the applicability of condonation provisions. It underscores the importance of timely appeals, proper documentation, and adherence to statutory limitations in legal proceedings.