2000 (7) TMI 107 - AT - Central Excise

Summary

Issues Involved:
1. Condonation of delay in filing appeals u/s 35E(4) of the Central Excise Act, 1944.
2. Applicability of provisions of Section 35B to applications u/s 35E(4).

Summary:

Condonation of Delay in Filing Appeals u/s 35E(4):
The application for condonation of delay in filing appeals E/2520 to 2538/99-C was considered by a larger Bench due to differing opinions among the members. The Judicial Member opined that the Tribunal lacks the power to condone the delay based on the decision in Super Pack v. Collector of Central Excise, Raipur. Conversely, the Technical Member believed the Tribunal has ample power to condone the delay as per clause (4) of Section 35E. The third Member, also a Judicial Member, referred the issue to a larger Bench without deciding on the Tribunal's power to condone the delay.

Applicability of Provisions of Section 35B to Applications u/s 35E(4):
Section 35E(1) empowers the Board to direct the Commissioner to apply to the Appellate Tribunal for determination of points arising from the Commissioner's decision. This must be done within one year from the date of the decision. The adjudicating authority must then apply to the Tribunal within three months from the date of communication of the Board's order. The Tribunal hears such applications as if they were appeals against the adjudicating authority's decision, and the provisions of the Act regarding appeals, including sub-section (4) of Section 35B, apply to such applications.

Key Findings:
1. The Tribunal must hear applications filed within three months as if they were appeals against the adjudicating authority's decision.
2. The phrase "so far as may be" in Section 35E(4) limits the application of appeal provisions to procedural aspects, not substantive rights.
3. The Tribunal does not have the power to condone delays in applications filed beyond the three-month period specified in Section 35E(4).

Relevant Case Law:
1. India Automotive Ltd. Adityapur v. Collector of Central Excise, Patna: This case was deemed irrelevant as it dealt with the maintainability of appeals under Section 35B, not the condonation of delay.
2. Swarajya Cement India Ltd. v. Collector of Central Excise, Delhi: The Tribunal's conclusion that it could condone delays was found incorrect as it did not fully examine the scope of Section 35E(4).
3. Collector of Central Excise v. New Tobacco Company Ltd.: This case was distinguished as it involved procedural issues related to filing supplementary appeals, not the initial filing against multiple noticees.

Conclusion:
The Tribunal concluded that it has no power to condone delays in filing applications u/s 35E(4) beyond the three-month period. The matter was referred back to the Bench for disposal on merits based on this conclusion.