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TMI Blog2013 (1) TMI 470X X X X Extracts X X X X X X X X Extracts X X X X ..... days in filing the appeal. According to the facts on record, the impugned order was received on 1-11-2011. But, the Committee of Commissioners authorized filing of appeal on 13-2-2012. The appeal has been received in the Tribunal on 14-2-2012, which would show that after the authorization was issued, there was absolutely no delay whatsoever in filing the appeal. The condonation of delay has been sought on the ground that during the period from May 2011 till the appeal was filed, there was no regular Commissioner posted for Surat-I Commissionerate and the additional charge was held by the Commissioners of Central Excise, Vadodara-II, Daman Vapi for short durations from time to time. 2. The application for condonation of delay was opposed by the respondent vehemently on the basis of precedent decision of the Tribunal in the case of Narendra Kumar Taparia - 2008 (225) E.L.T. 141 (Tri.-Kolkata) = 2009 (16) S.T.R. 230 (Tribunal) and on the basis of provisions of Section 35B(3) of Central Excise Act, 1944 relating to filing of appeal by the Revenue. 3. Heard both sides extensively on the statutory provisions and various judicial pronouncements. 4. Before proceeding further, it wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nate to him to apply to the Commissioner (Appeals) for the determination of such points arising out of the decision or order as may be specified by the Commissioner of Central Excise in his order. (3) The 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) within a period of three months from the date of communication of the decision or order of the adjudicating authority. (4) Where in pursuance of an order under sub-section (1) or sub-section (2) the adjudicating authority or the authorised officer makes an application to the Appellate Tribunal or the Commissioner (Appeals) within a period of [one month from the date of communication of the order under sub-section (1) or sub-section (2) to the adjudicating authority, such application shall be heard by the Appellate Tribunal or the Commissioner (Appeals), as the case may be, as if such application were an appeal made against the decision or order of the adjudicating authority and the provisions of this Act regarding appeals, including the provisions of sub-section (4) of Section 35B shall, so far as may be, apply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mittee of Commissioners to form its opinion under Section 129A(2) well before the time limit of three months. In this case, the Committee itself has formed the opinion after a lapse of the appeal period of three months. Such a delay on the part of the Committee of Commissioners, cannot be condoned, which in fact is the reason for late filing of the appeal. The Committee of Commissioners will be well advised to evolve a procedure for periodical and prompt review of orders-in-appeal, so that such delay in filing appeals can be avoided. 7. It may be seen that while the Tribunal held that it is incumbent on the Committee of Commissioners to form opinion well before the time limit of 3 months and Committee of Commissioners was well advised to evolve a procedure for periodical and prompt review of orders-in-appeal to avoid delay, the Tribunal did not discuss the provisions of Sections 35B, 35E of Central Excise Act, 1944 or Section 129A(3) of Customs Act, 1962 which is pari materia to Section 35B(3) and hold that the statutory provisions do not empower the Tribunal to condone the delay. It can be said that the Tribunal felt that the Committee of Commissioners in that case was negligen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration of appeal against an impugned order. 20. The period for consideration in case of delay in filing the appeal by the department would be the entire period for form the date of communication of the order to the review committee till the date of filing of application under Section 35E(4) of the said Act. 8. In this case also, consideration by Committee is part of preparation of appeal by the Department. Therefore, if the reasons for delay in Committee coming to conclusion are valid, public interest cannot be allowed to suffer. Therefore, the observations of the Larger Bench in Para 20 are applicable to Section 35B also. 9. Therefore, in my opinion, the decision of the Larger Bench in the case of Monnet Ispat Energy Ltd. cannot come to help of the respondent and it cannot be said that the Tribunal came to the conclusion that the statutory provisions do not allow the Tribunal to condone the delay. As regards the decision in the case of Trishla Distributors - 2009 (233) E.L.T. 531 (Tri.-Chennai), the said decision relied upon the decision in the case of Narendra Kumar Taparia and followed the same without considering the statutory provisions and also during the relevant ti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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