9911796707
TMI Blog2008 (5) TMI 569X X X X Extracts X X X X X X X X Extracts X X X X ..... h effect from 11-5-2007 whereby the period for review of the order passed by the adjudicating authority was reduced from one year to three months. The Commissioner (Appeals) in the impugned order held that the review order was passed after the amendment to the provisions of Section 35E of Central Excise Act, therefore, the amended provisions are applicable. As the review order is not passed within three months as per the amended provisions, therefore, the appeals are time-barred. 3. The contention of the Revenue is that the adjudication order was passed on 12-7-2006 and at that time the period for reviewing the order was one year. The review order was passed within one year and the amending provisions are not retrospective in nature, ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Bombay High Court held as under :- We have carefully looked into amended Section 35 amended by Amending Act of 2001 but do not find it either expressly or by necessary implication respective in operation. Section 35 prior to its amendment or subject thereto is identical except that of limitation providing for appeal and power to condone delay for maximum period in presenting appeal. Hence, in order to find out whether the period of limitation provided for enforcement of appellate remedy is in a sense procedural or a part of any procedure by which right of appeal may be enforced, reference to the scheme of the section will not make any difference. Section 35 provides for important statutory right of appeal to the Commissioner (Appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n absence of anything in it to show that it is retrospective, does not affect the right of the parties which has accrued to them on the date of passing of the order-in-original by the adjudicating authority. Assuming, contrary to the above option expressed, that the requirement that appeal must be filed within 3 months subject to getting delay condoned for a further maximum period of 3 months, does not take away the substantive right of appeal but merely bars the remedy, even then, the Revenue is not in a better position. Where the question arises whether a statute has a retrospective operation, it is usual to divide statute into two classes, the one where the new statute affects only the existing practice and procedure of the Courts for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the person is still within time under the existing law to institute a cause of action the statute might well be classed as procedural. Similarly, if the time is abridged whilst such person is still left with time within which to institute a cause of action, the abridgment might again be classed as procedural. But if the time is enlarged when a person is out of time to institute a cause of action so as to enable the action to be brought within the new time or is abridged so as to deprive him of time within which to institute it whilst he still has time to do so, very different consideration could arise. The cause of action which can be enforced as a very different thing to a cause of action the remedy for which is barred by lapse of time. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od of 3 months subject to condonation of delay for the reasons disclosed. As such, the appellate authority, the respondent No. 3 ought to have considered the appeals on the basis of unamended Section 35. In this view of the finding reached by us, order of the Commissioner (Appeals) and confirmation thereof by the CEGAT cannot be sustained. The same stands set aside. 7. In view of the above decision of the Hon ble Bombay High Court and view taken by the Commissioner (Appeals) is not sustainable. The Commissioner (Appeals) has dismissed the appeals as time-barred and has not gone into the merits of the appeals. Hence the impugned orders are set aside and the matter is remanded to the Commissioner (Appeals) to decide the appeals on merits a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
