2008 (6) TMI 5 - AT - Central Excise

Delay in filing of appeal by revenue because of absence of Review Committee - Delay by CBEC in constituting Review Committee huge revenue loss - we direct the Board through its Member (Personnel) to file a proper affidavit explaining the reasons for delay in constituting the Committee of Chief Commissioners - We further direct that the Member (Personnel) of the Board be present at the time of hearing before tribunal matter adjourned

Summary

Issues:
1. Delay in filing appeal
2. Condonation of delay
3. Review period change
4. Reduction in appeal filing period
5. Tribunal's power to condone delay
6. Failure of Board to fulfill statutory obligation
7. Tribunal's jurisdiction and powers

Analysis:

1. Delay in filing appeal:
The case involves a significant delay in filing the appeal, with the application in Form EA-5 filed after 423 days of passing the impugned Order-in-Original. The delay was attributed to the Board for not constituting the required Committee for review. Despite multiple adjournments, the Board failed to file a proper affidavit explaining the delay.

2. Condonation of delay:
The Tribunal must consider condoning the delay in filing the appeal, especially due to the involvement of a substantial amount of revenue exceeding Rs. 8.41 Crores. The delay was linked to the Board's failure to fulfill its statutory obligation, raising important legal questions regarding the review period and appeal filing timelines.

3. Review period change:
A key issue arises from the change in the review period from "one year from the date of the order" to "three months from the date of communication of the order" by the Finance Act, 2007. The question is whether the new review period applies retroactively to orders passed before the change or only to subsequent cases.

4. Reduction in appeal filing period:
Another issue concerns the reduction in the period for filing appeals from 'three months to one month' by the Finance Act, 2007. The appeal in this case was filed beyond one month, leading to arguments regarding the Tribunal's power to condone such delays.

5. Tribunal's power to condone delay:
The Respondent's advocate argued that the Tribunal lacks the authority to condone delays in filing applications/appeals under Section 35E of the Central Excise Act, 2004, citing a previous decision. This raises a crucial procedural question regarding the Tribunal's discretion in condoning delays.

6. Failure of Board to fulfill statutory obligation:
The Board's failure to constitute the Committee of Chief Commissioners as required by law is a significant concern. The Board's inability to explain the delay in fulfilling this obligation has led to challenges in the condonation process, emphasizing the need for accountability and adherence to statutory duties.

7. Tribunal's jurisdiction and powers:
The Tribunal, functioning as a judicial body, possesses powers necessary to effectively exercise its statutory authority. In this case, the Tribunal emphasizes the need for the Board to provide a proper affidavit explaining the delay and fulfilling its statutory obligations to avoid jeopardizing public revenue and ensure timely review processes.

In conclusion, the judgment highlights the complexities surrounding the delay in filing the appeal, intertwined with legal questions regarding review periods, appeal timelines, and the Tribunal's authority to condone delays. The failure of the Board to fulfill its statutory obligations underscores the importance of accountability and adherence to legal procedures in safeguarding public revenue and ensuring timely judicial processes.