9911796707
TMI Blog2000 (7) TMI 107X X X X Extracts X X X X X X X X Extracts X X X X ..... or of Central Excise, Mumbai-III, to apply to this Tribunal for correct determination of the points found by the Board in its order No. 65-R/93, dated 30-3-1993. In compliance with the order passed by the Board, appeal E/2131/93-C was filed before this Tribunal on 14-6-1993. In that appeal, M/s. Highland Dye Works, Sonapur Road, Mumbai - 400 078 were made the sole respondent. Other noticees to whom show cause notices were issued and the proceedings were dropped by the Collector, were not found made econominee parties in the appeal. Against those parties the department now wants to file appeals. Since those appeals were filed nearly six years after the date of the order of the Board, this application for condoning the delay caused in the filing of the appeals happened to be filed. The application went before a Bench consisting of two Members. Judicial Member took the view that the Tribunal has no power to condone the delay on the facts and circumstances of this case. In support of this conclusion, learned Member relied on the decision of this Tribunal in miscellaneous order No. 108/98-C, dated 13-7-1998 in the case of Super Pack v. Collector of Central Excise, Raipur. Learned Techni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r under sub-section (1) to the adjudicating authority, such application shall be heard by the Appellate Tribunal as if such application were an appeal made against the decision of the adjudicating authority. It goes on to state that the provisions contained in the Act regarding appeals shall, so far as may be, apply to such application. A further clarification is also incorporated in the clause which says that the provisions of the Act regarding appeals, including the provisions of sub-section (4) of Section 35B, so far as may be, shall apply to such application. What are the consequences that are falling out of these provisions? 4.On examination into the legality or propriety of an order passed by a Commissioner, the Board may direct the Commissioner to apply to the Appellate Tribunal for the determination of the points arising out of the decision which are to be specified by the Board in its order. The order of the Board must be passed within one year from the date of the decision rendered by the Commissioner. The order so passed by the Board should be communicated to the adjudicating authority. Within three months from the date of its communication to the adjudicating authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions contained in sub-section (4) of Section 35B have been read into clause (4) of Section 35E of the Act. 5.Clause (4) of Section 35E provides that the Appellate Tribunal shall hear the application filed by the adjudicating authority as if it were an appeal and the provisions regarding appeals contained in the Act will apply. This statement contained in clause (4) can only mean that this Tribunal should dispose of that application as if an appeal has been filed in conformity with the provisions relating to appeals. In other words, this provision will not make the substantive rights relating to appeal to apply to applications filed by the adjudicating authority pursuant to the direction of the Board. 6.Appeals to this Tribunal are governed by the provisions contained in Section 35B of the Act. Any person aggrieved by the order mentioned therein can prefer an appeal to the Tribunal. So also if the Commissioner is of the view that an order passed by the Appellate Commissioner under Section 35B of the Act is not legal or proper, he can authorise an officer to prefer an appeal to this Tribunal. An appeal by the aggrieved party or by the Commissioner in the above situation should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of the Deputy Collector and decided the issue against the assessee. On appeal by the assessee, a preliminary question arose as to whether appeal is maintainable in terms of Section 35B of the Act. The majority took the view that the appeal is maintainable holding that an appeal would lie to the Appellate Tribunal under Section 35B against an order passed by the Collector (Appeals) under Section 35E(4) of the Act. This decision has no relevance to the issue raised in the petitions before us. Learned Departmental Representative then relied on decision of this Tribunal in Swarajya Cement India Ltd. v. Collector of Central Excise, Delhi reported in 1998 (102) 347 to support his contention. That was an appeal against an order passed by the Collector (Appeals) allowing a departmental application filed under Section 35E(4) of the Act. Appellant raised a point about the appeal having been filed by the Assistant Collector on the authorisation of the Collector beyond the permitted period. There was a delay of ten days on the part of the Assistant Collector in filing the appeal, which was condoned by the Collector (Appeals). Dealing with this issue, this Tribunal observed : "On the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ading the two together and finding that since the composite appeal pertained to the persons against whom allegations have been dropped and they were required to be examined in appeal, therefore, the list was sufficient and one composite appeal served the purpose. In regard to issue of summons, we note that had the appeals come up for hearing, summons would have gone to all the parties mentioned in the list. We have also perused the case law cited and relied upon by both the sides. We have considered the various arguments adduced. We note that in the present case, filing of supplementary appeals was procedural inasmuch as the composite appeal was self-contained. It was not only in respect of one individual, but it was in challenge of the decisions on allegations contained in Part I of the Show Cause Notice vide Adjudication Order No. 22/1991." The said decision has no application to the facts before us. In the instant case, even though there were twenty noticees and the order-in-original related to all of them, appeal was filed against Highland Dye Works alone. Other noticees were not arrayed as respondents in the appeal. So, the decision cited cannot be of any assistance to the d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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