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TMI Blog2014 (4) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 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 appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent : Mr. M. P. Devnath, Advocate JDUGEMENT JUDGEMENT Per: Ajay Kumar Mittal: 1. This appeal has been preferred by the revenue under Section 35G of the Central Excise Act, 1944 (in short, the Act ) against the order dated 26.7.2012, Annexure A.3 passed by the Customs Excise and Service Tax Appellate Tribunal, New Delhi (in short, the Tribunal ), claiming following substantial questions of law:- i) Whether the Tribunal has power to condone the delay under Section 35B(5) of the Central Excise Act, 1944 in case of Departmental Appeal filed after Review Committee decision under Section 35E ibid? ii) Whether the divisional bench of the Tribunal was bound by larger bench decision in the case of CCE Raip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Feeder Cable and Low Loss Flexible Foam Dieletrical RF Feeder Cable chargeable to Central Excise duty under Chapter 85 of the Central Excise Tariff. It obtained Central Excise registration under Section 6 of the Act for manufacture of finished goods. It imports certain inputs which are exempt from custom duty under notification dated 1.3.2005 as amended subject to following the procedure prescribed under the Customs (Import of goods on concessional rate of duty for the manufacture of Excisable goods) Rules 1996 (in short, the Rules ). The assessee in accordance with the provisions of these rules applied to the jurisdictional Central Excise authority for registration which was granted to it. The department alleged that the assessee importe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 5. It may be noticed that Section 35E( 4) of the Act is pari materia to section 129D(4) of the Customs Act, 1962 (in short, the 1962 Act ) whereas Section 35B(5) of the Act and Section 129A(5) of the 1962 Act are similar. The Hon'ble Apex Court in Thakker Shipping Pvt. Limited's case (supra) held that Section 129A(5) of 1962 Act stands incorporated in Section 129D(4) of 1962 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the applicability of the provision relating to cross objections to the applications made under Section 129D( 4) or else it may be said that provisions relating to appeals to the Tribunal have been made applicable and not the cross objections. The use of expression so far as may be is to bring general provisions relating to the appeals to Tribunal into Section 129D( 4). Once the provisions relating to the appeals to the Tribunal have been made applicable, Section 129A( 5) stands incorporated in Section 129D(4) by way of legal fiction and must be given effect to. Seen thus, it becomes clear that the Act has given express power to the Tribunal to condone delay in making the application under Section 129D(4) if it is satisfied that there wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 view of the larger Bench of the CEGAT in Azo Dye Chem1 and the reasons in support thereof do not commend to us. We are unable to accept the view adumbrated by the CEGAT. 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 adjudic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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