TMI Blog2012 (11) TMI 242X X X X Extracts X X X X X X X X Extracts X X X X ..... s giving rise to this appeal are in brief, as under. 1.1 The respondents are manufacturers of Flexible Foam Dielectric EF Feeder Cable, Super Flexible Foam Dielectric RF Feeder Cable, Flexible Foam Dielectric Aluminium RF Feeder Cable and Low Loss Flexible Foam Dielecric RF Cable, chargeable to central excise duty under Chapter 85 of the Central Excise Tariff. They have obtained central excise registration under Section 6 of the Central Excise Act for manufacture of finished goods. They import certain inputs, which are exempt from custom duty under notification No.25/05-Cus dated 1.3.2005, as amended, subject to following the procedure prescribed under Customs (import of goods at concessional rate of duty for manufacture of excisable goods) Rules. 1996. The respondent accordingly in accordance with the provisions of these Rules applied to the jurisdictional central excise authority for registration which was granted to them. The department alleged that the respondent have imported certain goods by declaring their false description in the imports documents and in this manner, they have wrongly availed duty exemption under notification no.25/05-Cus dated 1.3.2005. It is on this bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion period of 3 months prescribed under Section 35 E(3), that the delay is only in filing of appeal on the basis of this review order in terms of the provisions of Section 35 E(4), that reasons for delay of 63 days in filing of this appeal are genuine, as the file containing the review order had got misplaced, that since the application filed under Section 35 E(4) in pursuance of the review order under Section 35E(1) is to be treated as an appeal by the Tribunal, all the provisions relating to appeals filed before the Tribunal under Section 35B would apply and, therefore, the Tribunal has powers to condone the delay of 63 days in filing of this review appeal and that in this regard, he relies upon judgement of Larger Bench of the Tribunal in the case of CCE, Raipur Vs. Monnet Ispat Energy Ltd. reported in 2010 (257) ELT 239 (Tribunal-LB). 4. Shri Bipin Garg, Advocate, ld. Counsel for the respondent pleaded that this is an appeal filed by the department under Section 35 E(4) of the Central Excise Act, 1944 in pursuance of the review order passed by the Reviewing Authority under Section 35 E(1) of the Act, that in respect of this review appeal filed by the department, which is r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the provisions of Section (4) of Section 35 B, so far as may be apply to such application. In this case, the application under Section 35 E(4) instead of being filed within a period of one month from the date of communication of the review order dated 31.5.2011 was filed on 1.8.2011 and thus, there is 63 day's delay in filing of the review application. The point of dispute is as to whether this delay can be condoned and the application filed after delay can be admitted as Revenue's appeal. According to the department, this delay is condonable and in this regard, the department relies upon the judgement of the Larger Bench of the Tribunal case of CCE, Raipur Vs. M/s. Monnet Ispat Ispat Energy Ltd. (supra). However, according to the respondent, this delay is not condonable and in this case, the respondent rely upon the judgment of earlier Larger Bench of the Tribunal in the case of CCE, Mumbai Vs. Azo Dye Chem (supra). 7. Section 35 E of the Central Excise Act, 1944 contains the provisions regarding the filing of the review appeals by the department against the orders-in-original passed by the various adjudicating authorities - Commissioner or officers lower in rank to the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Customs and Excise Revenues Appellate Tribunal established under section 3 of the Customs and Excise Revenues Appellate Tribunal Act, 1986] or the Collector (Appeals), as the case may be, as if such application were an appeal made against the decision or order of the adjudicating authority and the provisions of this Act regarding appeals, including the provisions of sub- section (4) of section 35B 1[or, as the case may be the provisions of the Customs and Excise Revenues Appellate Tribunal Act, 1986] shall, so far as may be, apply to such application." 7.1 From a plain reading of sub-section (4) of Section 35, it is clear that where in pursuance of an order passed under sub-section (1) or sub-section (2) of Section 35E, the adjudicating authority makes an application before the Appellate Tribunal or Commissioner (Appeals) within a period of one month from the date of communication of the order passed by the reviewing authority, such application shall be heard by the Appellate Tribunal or Commissioner (Appeals), as the case may be, as if it were an appeal against the decision or order of the adjudicating authority and the provisions of this Act regarding appeals including the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iod can satisfy the description "such application" found in clause (4) of Section 35E. When such an application is before the Tribunal, that application is to be heard by the Appellate Tribunal as if it is an appeal against the decision of the adjudicating authority. In deciding that appeal by the appellate authority, clause (4) further states that the provisions of this Act regarding appeals, including the provisions of sub-section (4) of Section 35B shall, so far as may be, apply to such application. But for the specific inclusion of sub-section (4) of Section 35B, no assessee or noticee, who was aggrieved by any part of the order passed by the adjudicating authority, could have filed a cross-appeal. Right of appeal or right to file cross-appeal is to be conferred by statute. In the absence of specific conferment of such a power, no noticee could have filed cross-appeal against the original order in an application filed by the adjudicating authority pursuant to the direction given by the Board, before the Appellate Tribunal. For that purpose, provisions contained in sub-section (4) of Section 35B have been read into clause (4) of Section 35E of the Act. 5. Clause (4) of Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowed to the extent possible. When understood with this limitation, it is clear that all the provisions of the Central Excise Act, 1944, regarding the substantive right of appeal to this Tribunal are not extended to an application contemplated by it Only those which are procedural in nature can apply to such an application. 7. Learned Departmental Representative relied on the decision of a larger Bench of this Tribunal in India Automotive Ltd. Adityapur v. Collector of Central Excise, Patna reported in 1986 (26) E.L.T. 99 in support of his contention that this Tribunal has got ample power to condone the delay caused in filing an application falling within the purview of Section 35E(4). In that case, the facts were as follows. Adjudicating authority, namely, the Deputy Collector passed an order which was against the department. The Collector of Central Excise, Patna passed an order directing the Deputy Collector to file an appeal against the Deputy Collector's order-in-original. Thereupon, an appeal was filed before the Collector (Appeals). He set aside the order of the Deputy Collector and decided the issue against the assessee. On appeal by the assessee, a preliminary questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he delay in filing an appeal. In that case, a show cause notice was issued to M/s. New Tobacco Company Ltd. and seventeen others. The Collector of Central Excise passed a common order-in-original against all the noticees. That order was communicated to all the noticees, namely, eighteen in number. This order was reviewed by the Central Board of Excise and Customs. In pursuance of the order of the Board, an appeal was filed by the Collector of Central Excise with all the eighteen noticees as respondents. During the pendency of the appeal, Revenue sought to file seventeen supplementary appeals against each of the noticees who were mentioned as respondents in the earlier appeal. Then the question arose as to whether the seventeen appeals are to be admitted after condoning the delay. The Bench took the view that appeal having been preferred against all the eighteen noticees by filing the first appeal, the filing of supplementary appeals was purely procedural. The Bench observed: "Since adjudication order was one and since the review was in respect of the allegations dropped, reading the two together and finding that since the composite appeal pertained to the persons against ..... X X X X Extracts X X X X X X X X Extracts X X X X
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