9911796707
TMI Blog2014 (1) TMI 107X X X X Extracts X X X X X X X X Extracts X X X X ..... opinion between the two Chief Commissioners of the Committee on the question of legality and propriety of the Commissioner's order, the matter was referred by the Committee to the Central Board of Excise & Customs. The Review order under Section 35E (1) of Central Excise Act, 1944 directing the filing of appeal before Tribunal was passed by the Central Board of Excise & Custom on 10.10.12 i.e. beyond the period of three months prescribed under section 35E(3). The appeal ultimately was filed before the Tribunal on 5.11.12. Accordingly, the department has filed an application for condonation of delay of 35 days in filing of the appeal. 2. Heard both sides. 3. Shri Sanjay Jain, learned Departmental Representative, pleaded that delay was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 (SC)], the delay in passing of the order by reviewing authority under section 35E(1) is not condonable, that this judgment has been followed by Hon'ble Himachal Pradesh High Court in the case of Central Excise vs. Bhillai Wires Ltd. [2009 (236) ELT 40 (HP]; that the Apex Court's judgment in the case of Thakkar Shipping P. Ltd. (supra) cited by the learned DR is in respect of question as to whether the delay in filing of review appeal before the Tribunal under Section 129 D (4) after issue of review order by the Committee of Chief Commissioners under Section 129 D (1) can be condoned and on this point, the Apex Court has over-ruled the judgment of the Larger Bench of the Tribunal in the case of Azo Dye Chem [2000 (120) ELT 201(Tri-LB)] tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was as to whether the delay in filing of appeal under Section 129 D (4) [analogous to Section 35 E (4) of the Central Excise Act, 1944] after issue of review order under Section 129 D (1) [analogous to Section 35 E (1) of the Central Excise Act, 1944] can be condoned and this question which has been answered in the affirmative over-ruling the judgment of Larger Bench of the Tribunal in Azo Dye Chem (supra). Thus, the decision in case of Thakkar Shipping P. Ltd. (supra) is not applicable to the facts of the this case and it is the judgment of M M Rubber which is applicable. The delay in this case is therefore not condonable and as such, the appeal is not maintainable. 6. The COD application as well as appeal is therefore dismissed. (Pronou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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