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TMI Blog2013 (1) TMI 470X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of delay was opposed by the respondent vehemently on the basis of precedent decision of the Tribunal in the case of Narendra Kumar Taparia - 2008 (225) E.L.T. 141 (Tri.-Kolkata) = 2009 (16) S.T.R. 230 (Tribunal) and on the basis of provisions of Section 35B(3) of Central Excise Act, 1944 relating to filing of appeal by the Revenue. 3. Heard both sides extensively on the statutory provisions and various judicial pronouncements. 4. Before proceeding further, it would be appropriate to reproduce the relevant provisions of Sections 35B and 35E of Central Excise Act, 1944. "35B. Appeals to the Appellate Tribunal :- (3) Every appeal under this section shall be filed within three months from the date on which the order sought to be appealed against is communicated to the Commissioner of Central Excise, or, as the case may be, the other party preferring the appeal. (4) On receipt of notice that an appeal has been preferred under this section, the party against whom the appeal has been preferred may, notwithstanding that he may not have appealed against such order or any part thereof, file, within forty-five days of the receipt of the notice, a memorandum of cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner (Appeals) within a period of [one month from the date of communication of the order under sub-section (1) or sub-section (2) to the adjudicating authority, such application shall be heard by the Appellate Tribunal or the Commissioner (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 shall, so far as may be, apply to such application." 5. It was submitted on behalf of the respondent that in Narendra Kumar Taparia's case, the Tribunal had taken a view that the delay on the part of the Committee of Commissioners who formed an opinion after the lapse of appeal period, cannot be condoned and therefore the appeal cannot be considered. It was also submitted that the Larger Bench in the case of Monnet Ispat & Energy Ltd. - 2010 (257) E.L.T. 239 (Tri.-LB), which considered the issue of condonation of delay in filing the appeal because of the delay on the part of the Committee under Section 35E of Central Excise Act, 1944, had considered the decision in the case of Narendra Kumar Taparia. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the time limit of 3 months and Committee of Commissioners was well advised to evolve a procedure for periodical and prompt review of orders-in-appeal to avoid delay, the Tribunal did not discuss the provisions of Sections 35B, 35E of Central Excise Act, 1944 or Section 129A(3) of Customs Act, 1962 which is pari materia to Section 35B(3) and hold that the statutory provisions do not empower the Tribunal to condone the delay. It can be said that the Tribunal felt that the Committee of Commissioners in that case was negligent, had not evolved a procedure for periodical and prompt review and therefore even though the delay was only of 3-4 days, the condonation was refused. If the delay has to be refused on the ground that the statute did not allow the condonation, the relevant provisions would have been reproduced, analyzed and thereafter the conclusion reached. Further, in the very next paragraph, it has also been stated that even on merit, the condonation was not required. The observations of the Tribunal in the two paragraphs would show that the decision to refuse the condonation was on merit as well as on the ground that the Committee in that case was found not to have evolved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n my opinion, the decision of the Larger Bench in the case of Monnet Ispat & Energy Ltd. cannot come to help of the respondent and it cannot be said that the Tribunal came to the conclusion that the statutory provisions do not allow the Tribunal to condone the delay. As regards the decision in the case of Trishla Distributors - 2009 (233) E.L.T. 531 (Tri.-Chennai), the said decision relied upon the decision in the case of Narendra Kumar Taparia and followed the same without considering the statutory provisions and also during the relevant time, the decision of the Larger Bench in the case of Monnet Ispat & Energy Ltd. was not available. Moreover, there is no indication that the matter was argued extensively by the Revenue on this aspect. In the absence of detailed consideration of the relevant issues, this decision cannot be considered. 10. As regards the decision of the Hon'ble Apex Court relied upon by the respondent, the observations and the discussions above would show that the decision is in line with the decision of Hon'ble Apex Court that what is required to be followed is ratio decidendi and not mere observations that I have reached the conclusion. 11. I also dr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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