2010 (4) TMI 422 - HC - Central Excise

Appeal Dismissed: Tribunal's Decision Upheld; Appeal Time-Barred under Section 35E of Central Excise Act

COMMISSIONER OF C. EX., BANGALORE-II Versus MILLIPORE (I) PVT. LTD.

The High Court dismissed the appeal, ruling in favor of the respondent and upholding the Tribunal's decision. The Court determined that the relevant date ... Limitation- A show cause notice was issued demanding total duty of Rs. 1,16,76,805/- and also to levy penalty. The show cause notice was adjudicated by the Commissioner by his order wherein the confirmed demand of duty for Rs. 5,01,730/- and the remaining demand was dropped. Whether date of passing review order or date of issue of review order. C.B.E.& C. required to take decision and direct filing of appeal within one year from date of adjudication. Held that- no material placed to show that decision to file appeal taken in one year from date of adjudication. Two orders by C.B.E & C. not provided for and another order not required when decision taken earlier. Question of law answered in favour of assessee. Appeal filed by department before Tribunal time-barred. Issues Involved:1. Determination of the relevant date for appeal before CESTAT under Section 35E of the Central Excise Act, 1944.2. Interpretation of the order passed by the Board and its implications on the limitation period for filing an appeal before the Tribunal.Analysis:Issue 1: Determination of Relevant Date for AppealThe appeal before the High Court challenged the legality of the order passed by the CESTAT, questioning the relevant date for appeal under Section 35E of the Central Excise Act, 1944. The primary contention was whether the relevant date for appeal was the date of the review order passed or the date of issue of the said review order. The appellant argued that the original order by the Board was passed earlier than the formal order date, therefore, the appeal should be allowed. However, the respondent contended that the order was actually passed on the formal date and within one year from the adjudication, justifying the rejection of the appeal by the Tribunal.Issue 2: Interpretation of the Board's Order and Limitation for AppealThe case involved a show cause notice issued to the assessee for clearing goods without payment of duty, leading to a demand for duty and penalty. The Commissioner's adjudication confirmed a partial duty demand, which was later reviewed by the Board under Section 35E of the Act. The Tribunal rejected the appeal on the grounds of limitation, as the order for review was deemed to have been passed on a specific date. The High Court upheld the Tribunal's decision, emphasizing that there was no evidence to prove that the Board had made a decision within one year of the Commissioner's adjudication. The Court noted that there should not be two separate orders by the Board, and since the alleged earlier order was not presented, the appeal was dismissed as barred by limitation under Section 35E(3) of the Act.In conclusion, the High Court dismissed the appeal, ruling in favor of the respondent and upholding the Tribunal's decision based on the interpretation of the relevant date for appeal and the Board's order, which impacted the limitation period for filing an appeal before the Tribunal under the Central Excise Act, 1944.