2014 (4) TMI 146 - HC - Central Excise

Condonation of delay - Jurisdiction of tribunal - whether in case of delay in filing the appeal where the Committee of Chief Commissioner of Central Excise takes a decision to file an application to the Tribunal beyond the period of one month from the date of communication of the order in terms of section 35E( 4) of the Act, the Tribunal is competent to condone the delay for sufficient cause under Section 35B(5) of the Act - Held that - where an application is made by the Commissioner to the Tribunal in pursuance of an order under sub-section (1) within a prescribed period from the date of communication of that order, such application shall be heard by the Tribunal as if it was an appeal made against the decision or order of the adjudicating authority and the provisions regarding appeals under Section 129A to the Tribunal, in so far as they are applicable, would be applicable to such application. The crucial words and expressions in Section 129D(4) are, such application , heard , as if such application were an appeal and so far as may be . The expression such application , inter alia, is referable to the application made by the Commissioner to the Tribunal in pursuance of an order under sub-section (1) of Section 129D. The period prescribed in Section 129D for making application does not control the expression such application . It is difficult to understand how an application made under Section 129D (4) pursuant to the order passed under sub-sections (1) or (2) shall cease to be such application merely because it has not been made within prescribed time. If the construction to the words such application is given to mean an application filed by the Commissioner before the Tribunal within the prescribed period only, the subsequent expressions heard , as if such an application were an appeal and so far as may be occurring in Section 129D(4) of the Act may be rendered ineffective. The clear and unambiguous provision in Section 129D(4) that the application made therein shall be heard by the Tribunal as if it was an appeal made against the decision or order of the adjudicating authority and the provisions of the Act regarding appeals, so far as may be, shall apply to such application leaves no manner of doubt that the provisions of Section 129A (1) to (7) have been mutatis mutandis made applicable, with due alteration wherever necessary, to the applications under Section 129D(4). - Following decision of COMMISSIONER OF CENTRAL EXCISE, MUMBAI Versus AZO DYE CHEM 2000 (7) TMI 107 - CEGAT, COURT NO. III, NEW DELHI - Matter remanded back - Decided in favour of Revenue.

Summary

Issues:
1. Tribunal's power to condone delay under Section 35B(5) of the Central Excise Act, 1944.
2. Tribunal's obligation to follow larger bench decisions.
3. Justification for relying on earlier tribunal decisions.
4. Impact of Supreme Court decisions on tribunal orders.

Issue 1:
The primary issue in this case revolves around the Tribunal's authority to condone delays in filing appeals under Section 35B(5) of the Central Excise Act, 1944. The appellant raised concerns regarding the Tribunal's competence to condone delays beyond the prescribed period, specifically in cases where the Committee of Chief Commissioner of Central Excise decides to file an application to the Tribunal after the one-month deadline. The High Court analyzed the legal provisions under Section 35B(5) in comparison to similar provisions in the Customs Act, 1962. Citing the Thakker Shipping Pvt. Limited case, the Court emphasized that the Tribunal indeed possesses the power to condone delays if sufficient cause is established, as mandated by the legal framework.

Issue 2:
Another issue addressed in the judgment pertains to the Tribunal's adherence to larger bench decisions. The appellant questioned whether a divisional bench of the Tribunal was bound by a larger bench decision or could take a different stance without referring the matter to a larger bench. The High Court scrutinized the Tribunal's reliance on the Azo Dye Chem's case and the subsequent overruling of this decision by the Apex Court. The Court highlighted that the provisions of Section 129A were integrally linked to Section 129D(4) of the Customs Act, emphasizing the applicability of legal fictions and the necessity to give effect to the statutory framework.

Issue 3:
The judgment further delves into the justification for relying on earlier tribunal decisions, specifically in the context of different statutory provisions. The High Court examined the case history and the department's allegations against the respondent-assessee regarding the importation of goods under false descriptions, leading to the wrongful availing of duty exemptions. The Court reviewed the Tribunal's decision to dismiss the appeal based on the absence of provisions for condonation of delay under Section 35E(4) and the reliance on the Azo Dye Chem's case. The Court ultimately set aside the Tribunal's order, emphasizing the need for a fresh assessment of the sufficiency of reasons for condoning the delay in filing the appeal.

Issue 4:
Lastly, the judgment addresses the impact of Supreme Court decisions on tribunal orders. The High Court referred to the Thakker Shipping Pvt. Limited case to underscore the legal principles governing the Tribunal's authority to condone delays. By setting aside the Tribunal's order and remanding the matter for a fresh decision, the Court upheld the significance of legal precedents and statutory interpretations in adjudicating appeals under the Central Excise Act, 1944.