2012 (12) TMI 394 - AT - Customs

CESTAT dismisses appeal due to delay in filing, clarifies Section 129D interpretation

COMMISSIONER OF CUSTOMS, NEW DELHI Versus ERICSSON COMMUNICATIONS LTD.

The Appellate Tribunal CESTAT, NEW DELHI, dismissed the appeals as barred by limitation due to the delay of 221 days in filing the appeal against the ... COD - application for condonation of delay of 221 days – Held that:- Right of appeal or right to file cross appeal is to be conferred by statute - in terms of the provisions of Section 35E of the Central Excise Act, 1944, the Tribunal has no powers to condone the delay caused in filing the appeal beyond the period of three months allowed by the provisions of the said Section 35E(4) - COD application stands rejected, the appeals filed by the Revenue are dismissed as barred by limitation Issues:1. Appeal against order passed by Commissioner of Customs with a delay of 221 days.2. Interpretation of Section 129D before and after amendment.3. Review process by Committee of Chief Commissioners.4. Acceptance of order by Chief Commissioner and subsequent review.5. Application of law retrospectively.6. Condonation of delay in filing appeal.7. Provisions for review under Section 129(D)(3).8. Difference of opinion in the Committee of Chief Commissioners.9. Board's circular on handling differences in opinion.10. Time limit for review and condonation of delay.Analysis:1. The appeal was filed against the order passed by the Commissioner of Customs with a delay of 221 days. The Appellate Tribunal heard arguments from both parties represented by their respective counsels.2. The Tribunal analyzed the provisions of Section 129D before and after the amendment. It was noted that under the previous provisions, the Board had the authority to review orders, while the amended section required a review by a Committee of Chief Commissioners.3. The review process by the Committee of Chief Commissioners was discussed. The Tribunal observed that a circular was issued to address situations where there was a difference of opinion between the members of the Committee.4. The Tribunal considered the acceptance of the order by the Chief Commissioner and the subsequent review by the Committee of Chief Commissioners. It was highlighted that once an order is accepted, a subsequent review should not be conducted without valid reasons.5. The issue of applying the law retrospectively was deliberated upon. The Tribunal concluded that the amended provisions of Section 129D should not be applied retrospectively to cases that had already attained finality under the previous law.6. Condonation of delay in filing the appeal was discussed, emphasizing that the delay cannot be condoned if it exceeds the specified time limits as per the law.7. Provisions under Section 129(D)(3) regarding the time limit for review were examined. The Tribunal cited a previous decision stating that the delay in passing a review order beyond the specified period cannot be condoned.8. The Tribunal noted a difference of opinion within the Committee of Chief Commissioners and referred to a circular addressing such situations.9. The Tribunal highlighted a previous case regarding the Board's circular encouraging a pro-revenue approach in cases of differences in opinion, emphasizing that such circular should not be a reason for condoning delays.10. Lastly, the Tribunal reiterated the time limit for review and condonation of delay, ultimately rejecting the application for condonation of delay and dismissing the appeals as barred by limitation.This comprehensive analysis covers the key issues addressed in the legal judgment delivered by the Appellate Tribunal CESTAT, NEW DELHI.