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2014 (4) TMI 146 - HC - Central ExciseCondonation of delay - Jurisdiction of tribunal - whether in case of 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 - Held that:- where an application is made by the Commissioner to the Tribunal in pursuance of an order under sub-section (1) 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 application does not control the expression “such application”. It is difficult to understand how an application made under Section 129D (4) pursuant to the order passed under sub-sections (1) or (2) shall cease to be “such application” merely because it 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 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 adjudicating authority and the provisions of the Act regarding appeals, so far as may be, shall apply to such application leaves no manner of doubt that the provisions of Section 129A (1) to (7) have been mutatis mutandis made applicable, with due alteration wherever necessary, to the applications under Section 129D(4). - Following decision of COMMISSIONER OF CENTRAL EXCISE, MUMBAI Versus AZO DYE CHEM [2000 (7) TMI 107 - CEGAT, COURT NO. III, NEW DELHI] - Matter remanded back - Decided in favour of Revenue.
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