2001 (5) TMI 271 - AT - Central Excise

Summary

Issues:
- Maintainability of the appeal based on the review period under Section 35E of the Act
- Failure to challenge the order within the time granted by the High Court

Analysis:
1. The appeal before the Appellate Tribunal challenges an order of the adjudicating authority dated 10-4-1992, following a show cause notice issued on 15-9-1989 for a transaction period between 1-9-1985 to 28-2-1987. The respondent had previously challenged the show cause notice through a writ petition, which was later amended to include the notice dated 15-9-1989. The High Court allowed the adjudication to proceed but with conditions on communication of the final order, which was passed on 10-4-1992 and filed before the High Court. The appeal by the Revenue is against this final order marked as exhibit "JJ" in the writ petition.

2. The appeal was filed on 24-1-1995 following a review order by the Board on 15-11-1994. The respondents' counsel raised objections on the appeal's maintainability, citing Section 35E of the Act, which requires the Board to review an order within one year. As the review was not done within one year from 10-4-1992, the appeal was deemed not maintainable. Additionally, the High Court had granted the Revenue two months to challenge the order, but the appeal was filed on 24-1-1995, beyond the granted period. The respondents argued that the appeal is not maintainable based on these grounds.

3. The respondents' counsel relied on the decision in GTC Industries Limited v. Collector of Central Excise, emphasizing paragraph 12 of the judgment. The cited paragraph clarifies that the High Court's order did not restrict the Revenue's activities, and the Board's order was passed after the prescribed period under Section 35E of the Act. This reference was made to support the argument that the appeal in question is not maintainable due to the failure to adhere to the statutory timelines.

4. The Tribunal upheld the preliminary objection raised by the respondents' counsel, concluding that the appeal is barred by limitation. The failure to review the order within the specified period and the delay in challenging the order as per the High Court's granted time rendered the appeal "hopelessly barred by limitation." Consequently, the Tribunal dismissed the appeal without delving into the merits of the case, solely based on the procedural shortcomings regarding the timeline for filing the appeal.