TMI Blog2016 (9) TMI 786X X X X Extracts X X X X X X X X Extracts X X X X ..... lent when the appeal was filed and considered the same. Therefore, the subsequent amendment would not be applicable as the order impugned was based on consent of the petitioner that their clients were ready and willing to deposit 50% of the duty i.e. to the tune of ₹ 35 lakhs within a period of eight weeks from date. Moreover, on concession though opportunity to deposit ₹ 35 lakhs only was obtained on September 4, 2015, instead of its deposit, rather causing loss of revenue, has been utilising the said amount as their own under the garb of this application. Therefore, we fail to look eye to eye with the submission of appellant to accept his contention that there was any mistake or error apparent on the face of record, to ente ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... G.A.No.1943 of 2016 is an application under Section 5 of the Limitation Act, 1963 for condonation of delay of 267 days in presenting the Memorandum of Review being RVWO No.20 of 2016. We have heard the learned Senior Counsel Mr. Saptangshu Basu for the applicant and also the learned Advocate Mr. Uday Sankar Bhattacharyya, representing the respondent- Commissioner of Central Excise and perused the application under Section 5 of the Limitation Act and the application for review of the order dated 4th September, 2015 passed in GA No.2856 of 2015 and also the grounds made for review. Drawing our attention to the merits of the review application Mr. Basu submitted that had the provisions of Section 35-F of the Central Excise Act, 194 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal, deposit with the adjudicating authority the duty demanded or the penalty levied. Thereafter by Act 25 of 2014 Section 35-F has been included by amendment with effect from 01.10.2014. Mr. Basu tried to impress that since the appeal as preferred was dismissed and since there is no pending appeal, the benefit of the provisions of Section 35-F particularly 2nd proviso thereto should be applicable. Amended Section 35-F and its 2nd proviso are set out : 35-F. Deposit of certain percentage of duty demanded or penalty imposed before filing appeal.- The Tribunal or the Commissioner (Appeals), as the case may be, shall not entertain any appeal.- (i) under sub-section (1) OF Section 35, unless the appellant has deposited seven an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn under the garb of this application. Therefore, we fail to look eye to eye with the submission of Mr. Basu to accept his contention that there was any mistake or error apparent on the face of record, to entertain the review application, since the provision of amended Section 35-F was not placed. Rather since the penaltimate portion of the order under review had given opportunity of preferring appeal in lieu deposit of a portion of the sum of penalty to the tune of ₹ 35 lakhs on the basis of concession, the review application has got no merit. The impugned judgment therefore is held as beyond the scope of review. Though the period of limitation has been explained by the applicant in their own manner but had there been meritorious ..... X X X X Extracts X X X X X X X X Extracts X X X X
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