2010 (2) TMI 545 - AT - Central Excise

Delay in appeal - Section 35E(3) provides that a Committee of Chief Commissioners of Central Excise or the Commissioner of Central Excise as the case may be shall make order under sub-section (1) or sub-section (2) of 35E of the said Act within a period of three months from the date of communication of the decision or order of the adjudicating authority. Sub-section (4) thereof permits filing of appeal within one month from the date of communication of such decision to the department - It is not in dispute that the appeal was filed within one month from the date of communication of the decision of the Committee Held that - Department approaches the Tribunal beyond the period of four months from the date which is specified under Section 35B(3) is the Department required to justify the delay.

Summary

Issues:
1. Condonation of delay in filing an appeal under Section 35E of the Central Excise Act, 1944.
2. Interpretation of the time limits prescribed under Section 35E(3) and Section 35E(4) for filing appeals.
3. Jurisdiction of the Committee of Chief Commissioners of Central Excise in delivering decisions within the stipulated time frame.
4. Applicability of legal precedents and the need for a Larger Bench to address conflicting views on the time limits for filing appeals.

Analysis:
1. The case involved an application for condonation of a 5-day delay in filing an appeal. The appellant filed the appeal within one month from the date of communication of the decision of the Committee in accordance with Section 35E(4) of the Act. However, the respondent argued that the appeal was not filed within 4 months from the date of the impugned order, rendering it non-maintainable.

2. Section 35E(3) mandates that the Committee must make orders within three months from the date of communication of the decision. Sub-section (4) allows for filing an appeal within one month from the date of such decision. The decision of the Committee in this case was communicated beyond the three-month period, leading to a dispute regarding the maintainability of the appeal.

3. The respondent contended that the Committee's decision, delivered beyond the prescribed three-month period, should be considered unlawfully delivered, thereby questioning the jurisdiction and maintainability of the appeal. Legal precedents were cited to support this argument, highlighting the importance of timely decisions by the Committee.

4. The Tribunal analyzed previous decisions related to Section 35E and noted conflicting interpretations regarding the time limits for filing appeals. The Tribunal observed that the nature of the Committee's decision and the justification for any delay in approaching the Tribunal are crucial factors in determining the maintainability of an appeal. Due to the differing views on this matter, the Tribunal decided to refer the case to a Larger Bench for clarification on the power to condone delays and the methodology for calculating time limits for filing appeals under Section 35B(3).

In conclusion, the judgment addressed the complexities surrounding the time limits for filing appeals under the Central Excise Act, emphasizing the need for clarity and consistency in interpreting and applying relevant provisions.