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2014 (1) TMI 107 - AT - Central ExciseCondonation of Delay Delay of 35 Days Held that - Following COLLECTOR OF CENTRAL EXCISE Versus MM RUBBER CO. 1991 (9) TMI 71 - SUPREME COURT OF INDIA - The delay is not in filing of appeal under Section 35E (4) after issue of Review order under Section 35 E(1), but is in issue of the order under section 35E(1) by the Board, that in terms of the provisions of Section 35 E(3), while the Committee of Chief Commissioners or the Board, in case of difference of opinion between the two chief Commissioner of the Committee can review the order passed by the Commissioner within a period of three months from the date of communication. The limitation period under section 35E(3) is the same, i.e three months from the date of communication of the order, irrespective of whether the order under section 35E(1), was issued by the committee of Chief Commissioners or in case of difference between the Chief Commissioners, by the Board the delay is not condonable Decided against Revenue.
Issues:
Delay in filing appeal before the Tribunal due to delay in issuing review order by the Board under Section 35E(1) beyond the prescribed period. Analysis: The appeal was filed by the Revenue against an order passed by the Commissioner of Central Excise, Chandigarh. The impugned order was received by the Committee of Chief Commissioners, leading to a difference of opinion between the two Chief Commissioners on the legality and propriety of the Commissioner's order. Consequently, the matter was referred to the Central Board of Excise & Customs, which issued a Review order under Section 35E(1) of the Central Excise Act, 1944, directing the filing of appeal before the Tribunal. However, the Review order was issued beyond the three-month period prescribed under section 35E(3), resulting in a delay. The department sought condonation of the 35-day delay in filing the appeal before the Tribunal. The Departmental Representative argued that the delay was due to administrative reasons, as Chief Commissioners were located at different places and there was a difference of opinion between them. Referring to a Supreme Court judgment, the Departmental Representative contended that the delay in filing the review appeal can be condoned if the reasons are genuine. On the other hand, the counsel for the respondent contended that the delay in issuing the order under section 35E(1) by the Board was not condonable based on legal precedents, including a Supreme Court judgment and a decision by the Himachal Pradesh High Court. The respondent's counsel highlighted that the delay in this case was not in filing the appeal under Section 35E(4) but in issuing the order under Section 35E(1) by the Board. After considering the arguments from both sides and examining the records, the Tribunal noted that the delay in this case was in issuing the review order under Section 35E(1), which was not condonable based on legal precedents, including the Supreme Court's judgment in a specific case. The Tribunal clarified that the delay in filing the appeal was not in question, but the delay in issuing the review order by the Board was the crucial issue. The Tribunal emphasized that the Supreme Court's judgment cited by the Departmental Representative was not applicable to the facts of this case, as it dealt with a different issue. Therefore, the appeal was dismissed, and the application for condonation of delay was rejected.
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