2018 (7) TMI 1594 - AT - Central Excise

Revenue's Appeal Dismissed Despite Time Limit Error - Monetary Limits Govern Dismissal

The Revenue's appeal challenging the lower appellate authority's decision was dismissed by the Member. The appeal was found to be within the statutory ... Time Limitation - it was alleged that the appeal filed by the Department before the Commissioner (Appeals) was time barred - monetary amount involved in the appeal - Held that:- Admitted facts are, the date of the order of the adjudicating authority in the present appeal is 05.10.2016; the date of communication of the same to the reviewing authority was 17.10.2016, the date of order of the reviewing authority is 12.01.2017 and the date of filing of the appeal before the lower appellate authority is 19.01.2017. I is clear that the first appeal before the lower appellate authority is within the period of three months from the date of communication of the order which is well within the meaning of Section 35E (3) of the Central Excise Act, 1944. In view of the legal requirement of Section 35E (3) which is extracted herein above, the limitation would start from 17.10.2016 i.e., the date of communication of the order, which is relevant in the context of the amended provision of Section 35E (3) with effect from 01.06.2007 - the lower appellate authority has committed an error in holding that the limitation began on the date when the adjudicating authority affixed his signature However, considering quantum of amount/duty involved coupled with the fact that for the subsequent period the Revenue itself has not raised any demand, it is found that the issue is more an academic in nature and therefore the Revenue’s appeal dismissed - Revenue Appeal is therefore dismissed on monetary limits alone, on the basis of CBEC Circular F. No. 390/Misc./116/2017-JC dt. 11.07.2018, without going into the merits. Issues:1. Time limitation for filing an appeal before the lower appellate authority.2. Interpretation of Section 35E of the Central Excise Act, 1944 regarding the period for making an order.3. Applicability of National Litigation Policy on the maintainability of the Department's appeal.4. Academic nature of the appeal due to the dropped demand for the subsequent period.Analysis:1. The appeal was filed by the Revenue challenging the order of the Principal Commissioner, who held the appeal before the Commissioner (Appeals) as time-barred. The lower appellate authority deemed the Revenue's decision beyond the statutory period of limitation and thus unsustainable.2. The Department Representative argued that the order was communicated within the stipulated time as per Section 35E, post-amendment. The contention was that the lower appellate authority's decision was based on precedents from the pre-amendment period, making it unsustainable.3. The respondent contended that the tax effect in the case fell under the National Litigation Policy, rendering the Department's appeal not maintainable. It was argued that the appeal was academic due to the dropped demand for the subsequent period, with reliance on decisions related to similar provisions in the Customs Act, 1962.4. The Member analyzed Section 35E(3) post-amendment, emphasizing the importance of the date of communication of the order. The Member found that the appeal before the lower appellate authority was within the three-month period from the date of communication, as required by the law. Despite finding an error in the lower appellate authority's decision on the limitation start date, the Member dismissed the Revenue's appeal due to the academic nature of the issue and the insignificant amount involved.5. The judgment highlighted the dismissal of the Revenue's appeal based on monetary limits alone, referencing a CBEC Circular and avoiding a detailed examination of the merits. The decision was pronounced in open court on 20.07.2018.