TMI Blog2010 (2) TMI 545X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Committee – Held that: - Department approaches the Tribunal beyond the period of four months from the date which is specified under Section 35B(3) is the Department required to justify the delay. - E/2976/2009-EX - 274/2010-EX(PB) - Dated:- 22-2-2010 - Justice R.M.S. Khandeparkar, President and Rakesh Kumar, Member (T) Shri Anil Khanna, DR, for the Appellant. Shri K.K. Gupta Advocate, for the Respondent. [Order per : Justice R.M.S. Khandeparkar, President (Oral)]. - Heard. This is an application for condonation of delay of 5 days. Undisputedly, facts are that the orders sought to be impugned was passed on 30th June, 2009. The said order was communicated to the Committee of Chief Commissioners of Central Excise for its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt in Commissioner of Customs and Central Excise v. Hongo India (P) Ltd. reported in 2009 (236) E.L.T. 417 (S.C.); Commissioner of Central Excise v. Bhillai Wires Ltd. reported in 2009 (236) E.L.T. 40 (H.P.); Commissioner of Customs (Prev.), Kolkata v. Narendra Kumar Taparia reported in 2008 (225) E.L.T. 141 (Tribunal) = 2009 (16) S.T.R. 230 (Tribunal) and Commissioner of Customs, Chennai v. Trishla Distributors reported in 2009 (233) E.L.T. 531 the ld. Advocate for the respondent stated that the decision of the Committee of Chief Commissioners of Central Excise cannot be held to be lawfully delivered as it is delivered beyond the period of three months and should be held as having been delivered without jurisdiction and for the same reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... art of the framers to debar the committee from exercising its powers beyond the period of one year. However, the provision of law regarding the limitation for disposal of the matter before the Committee as it does not use the same phraseology, rather it provides that order shall be made within a period of 3 months from the date of communication of the decision or order of the adjudicating authority. It is true that two of the Hon'ble Members in the matter of Narendra Kumar Taparia Trishla Distributors have held that such order passed by the Committee after the expiry of period of three months could be bad in law. Equally it is true that the Division Bench of the Tribunal in Bhushan Ltd. case has held the order to be passed under sub-secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... find it difficult to agree with the view taken by the Tribunal in Bhushan Ltd. case. Bearing in mind the judicial discipline, therefore, it would be appropriate to refer the matter to the Larger Bench to decide as to whether in a situation where the Committee communicates the decision under Section 35(e) or (2) beyond the period of limitation to the adjudicating authority whether in such cases the appeal would be maintainable or not and secondly what is the methodology to be adopted for calculating the period of one month from the date of communication of the decision by the Committee to the adjudicating authority for the purpose of filing appeal before the Tribunal, bearing in mind the provisions of Section 35B(3). On both these points, i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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