TaxTMI 
TaxTMI 
2010 (8) TMI 50
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....lacing reliance in the decision of the Apex Court in the matter of Collector of Central Excise Vs. M.M. Rubber Co. reported in 1991 (55) ELT 289 (S.C.) and of the Larger Bench of the Bombay High Court in the matter of Commissioner of Income-tax vs. Velingkar Brothers reported in 2007 (109) Bom. L.R. 368 as also decision of the Division Bench of Gujarat High Court in the matter of Commissioner of Central Excise and Customs, Surat-I vs. Shree Ganesh Dyeing & Printing Works reported in 2008 (238) ELT 775(Guj.) submitted that the order passed under section 35E (1) or (2) of the said Act is an administrative order and it is beyond the jurisdiction of the Tribunal to sit in appeal over such order and for the same reason, it will not be possible for the Tribunal to deal with the question, as to whether the order there-under was passed within the period of three months or not. While dealing with the appeals, according to ld. Representative of the Department, the Tribunal has only to ascertain whether the appeal has been filed within one month from the date of communication of such order by the Committee to the appellant. 4. The ld. Advocate for the appellant on the other hand placing rel....
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....n 35B (3) (4) & (5) of the said Act read as under:- 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 cross-objections verified in the prescribed manner against any part of the order appealed against and such memorandum shall be disposed of by the Appellate Tribunal as if it were an appeal presented within the time specified in sub-section (3). (5) The Appellate Tribunal may admit an appeal or permit the filing of a memorandum of cross-objections after the expiry of the relevant period referred to in sub-section (3) or sub-section (4), if it is satisfied that there was sufficient cause for not presenting it within that period. (B) Section 35....
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.... 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. 8. Perusal of section 35 E would apparently disclose that the order which is spoken of either under sub-section (1) and sub-section (2) relates to formation of opinion about legality or propriety of the decision or order passed by the adjudicating authority, with a view to ascertain the viability of challenge to such decision or order before the appellate authority. The provision for ascertaining legality or propriety of such decision or order before filing the appeal against the same, came to be incorporated in the said Act pursuant to the decision of the Apex Court in ONGC vs. Collector of Central Excise reported in 1992 (61) E.L.T.3 (S.C.) and ONGC Ltd. vs. City & Indus. Dev. Corpn., Maharashtra reported in 2009 (233) E.L.T. 30 (S.C.). 9. Section 35 E (1) and 35 E (2) of the said Act do not contemplate any adjudication as such of any dispute between the parties to the proceedings. Neither of those sub-sections deals with any decision finalising the dispute between the parties. The opinion is to be formed merely to avoid frivolous appe....
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....me. ("Vide: Chet Ram Vashist vs. Municipal Corporation of Delhi AIR 1981 SC 653 = (1980) 4 SCC 647, Bhavnagar University vs. Palitana Sugar Mill Pvt. Ltd. AIR 2003 SC 511 = (2003) 2 SC 111, Balwant Singh vs. Anand Kumar Sharma AIR 2003 SC 1543 = (2003) 3 SC 433, Baru Ram Vs. Smt.Prasanni & Others AIR 1959 SC 93 and Sharif-ud-Din vs. Abdul Gani Lone AIR 1980 SC 303 = (1980) 1 SCC 403.) 12. The Statutory Committee Constituted either under sub-section (1) or sub-section (2) of Section 35 E of the said Act is undoubtedly expected to take an appropriate decision within a period of three months from the date of communication of the order of the adjudicating authority to them. However, it cannot be said that pursuant to failure to take such decision by the Committee within the prescribed period of three months, the Tribunal will have no jurisdiction to condone the delay in that regard and or any such condonation of period will amount to validate the decision taken by such authority beyond the said period. In such circumstances, the provisions of Section 35 B (5) of the said Act can be pressed into service. 13. It is, therefore, clear that when a statutory provision requires a particul....
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....f the Delhi High Court in the matter of Delta Impex vs. Commissioner of Customs (ACU), New Delhi reported in 2004 (173) E.L.T. 449 (Del.) = (2004-TIOL-67-HC-DEL-CUS) . Therein referring to section 128 of the Customs Act 1962, which deals with the subject of appeals to the Commissioner (Appeals) and which prescribes certain period of limitation and further power to condone the delay within prescribed period, the Delhi High Court had observed that "it would be difficult to say that Section 5 of the Limitation Act is intended to be made applicable in view of the proviso to section 128 of the Act in the instant case." The observation clearly applies to the proceedings under the Central Excise Act 1944 taking into consideration the provisions of law comprised under section 35 B (5). It cannot be forgotten that the said Act is a complete code and it provides for all the necessary eventualities including the provision relating to the filing of appeals, period of limitation in that regard, and power to condone the delay. On examination of the scheme of the said Act, it becomes abundantly clear that though provision of section 5 of the Limitation Act is excluded, the principle there-under s....
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....order. Even in such cases, on such consent being given by the Committee for filing the appeal and if the application pursuant thereto is filed by the Department under Section 35 E (4), the procedure which the Tribunal is required to follow is in terms of section 35 B, 35C & 35D of the said Act. The provisions regarding such procedure clearly include power to condone the delay in presenting the appeal within the prescribed period, provided sufficient cause for the same is established. 17. The provisions comprised under Section 35-B(5) of the said Act, therefore, clearly disclose incorporation therein the principle embodied in Section 5 of the Limitation Act, 1963. While, Section 35-B (5) applies on the face of it, to all the appeals filed under section 35-B itself, the section 35-E (4) specifically provides that the applications filed there-under should be heard by the Tribunal as if the same are appeals filed against the orders of the lower authority under the said Act and provisions of the said Act including Section 35-B (4) shall apply to such applications. In other words the power to condone delay on satisfaction about sufficient cause for the same is to be exercised not only ....
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....section (5) of section 35 B of the said Act. 22. In M.M. Rubber and Co. case, the issue which arose for consideration was as to what was the relevant date for the purpose of calculation of the period of one year provided under section 35 E (3) of the said Act. The matter related to the year 1984. At the relevant time section 35 E (3) of the said Act provided that "No order shall be made under sub-section (1) or sub-section (2) after expiry of one year from the date of the decision or order of the adjudicating authority". At the same time sub-section (4) of section 35E provided that the appeal should be filed "within a period of three months from the date of communication of the order under sub-section (1) or sub-section (2) to the adjudicating authority". Having noted the same, and the fact that the power conferred under section 35E is that of superintendent to ensure that the subordinate officers exercise their powers correctly and properly, and the fact that the period of one year from the date of the order is more than adequate to ensure action in appropriate cases particularly in comparison with the much shorter period an assessee has within which to exercise his right of app....
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.... it is assumed that the same should be at any time after the expiry of the period of three months, there is no outer limit prescribed for the same. But proper reading of sub-section (3) and (4) of section 35 EE would reveal that the total period prescribed is of four months for filing the appeal from the date of communication of the order of the adjudicating authority to the reviewing authority. 25. The decision in Bhushan's case was in relation to the old provision of law and not the law as it stands today. This is clear from para 19 of the said decision which reads thus:- "19. Before we conclude, we may mention that sub-section (3) of Section 35-E was amended with effect from 11.5.2007 while the matter was pending with the Committee. In terms of the amended provisions, the Committee is required to take decision within a period of three months from the date of communication of the order. A question arose as to whether the case would be governed by the unamended or the amended provisions. However, this was not pursued in course of hearing. Both sides argued on the premise that the instant case will be governed by erstwhile provision. We are of the same view. No submission to th....
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....nt on the Committee of Commissioners to form its opinion under Section 129A(2) well before the time limit of three months. In this case, the Committee itself has formed the opinion after a lapse of the appeal period of three months. Such a delay on the part of the Committee of Commissioners, cannot be condoned, which in fact is the reason for late filing of the appeal. The Committee of Commissioners will be well advised to evolve a procedure for periodical and prompt review of orders-in appeal, so that such delay in filing appeals can be avoided. 5. Moreover, I find that the lower appellate authority has upheld the confiscation of the impugned foreign origin goods as well as the confiscation of the truck. He has only set aside the confiscation of jute bags and small penalty of Rs.5,000/- (Rupees Five Thousand) only for the reasons stated by him. Hence on merit also, considering the nature of the dispute and the small amount involved, the impugned order requires no intervention of the Tribunal." 31. In Azo Dye Chem case the Larger Bench was dealing with the matter arising under the old provisions of law. The decision is not in relation to the provisions of law as they stand toda....
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....on (4) of Section 35B shall, so far as may be, apply to such application. But for the specific inclusion of sub-section (4) of Section 35B, no assessee or noticee, who was aggrieved by any part of the order passed by the adjudicating authority, could have filed a cross-appeal. Right of appeal or right to file cross-appeal is to be conferred by statute. In the absence of specific conferment of such a power, no noticee could have filed cross-appeal against the original order in an application filed by the adjudicating authority pursuant to the direction given by the Board, before the Appellate Tribunal. For that purpose, provisions contained in sub-section (4) of Section 35B have been read into clause (4) of Section 35E of the Act. 32. In the matter of Velingkar Brothers case the same was on the issue whether section 5 of the Limitation Act, 1963 was applicable to the appeal filed before the High Court under Income-tax Act or not. For the reasons stated above, it is of no help in the case in hand. Per: D N Panda: 33. I am in respectful agreement with the result of reference arrived at by Hon'ble President. Considering that certain considerations like equality before law, public....
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.... (6). Delay in constitution of the committee. CONDONATION OF DELAY IS PREMIUM TO THE LAPSE 35. While delay in decision making causes jeopardy to the interest of revenue, there exists no penal provision against the breach of duty made by the reviewing authority to carry out such duty including inaction. Only if sufficient cause is shown preventing Revenue to file its appeal duly, Revenue's Appeal is not made fatal. That is admitted condoning delay in view of certain exercising power of condonation of delay. However, because Tribunal is vested with power of condonation of delay, there shall not be grant of premium to the default of delay without prescription of lawful measure against breach of duty. LAW OF LIMITATION IS FOUNDED ON PUBLIC POLICY 36. Time is essence of life. Prescription of time to sever the bond between the right and remedy is necessary for a civilized society for alternate use of time. Right diminishes to be recognised with the passage of time and failure for persuasion calling for destruction thereof by limitation. The law of limitation fixes a lifespan for legal remedy for the redress of the legal injury suffered. But time is precious and wasted time would ....
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.... court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then court normally do not lean against acceptance of the explanation. While condoning the delay, the courts do not forget the opposite party altogether. It is borne in mind that he is a loser and he too would have incurred quite large litigation expenses. It is a salutary guideline that when courts condone the delay due to laches on the part of the applicant, the courts compensate the opposite party for his loss. DELAY CONDONATION POWER IS VESTED TO ADVANCE CAUSE OF JUSTICE 39. Limitation provision in the statute cannot be disregarded on equitable grounds. It has been held in the case of Bhag Singh and Others V. Major Daljit Singh and Others - 1987 (32) ELT 258 (SC) that the law is well settled by several decisions reported in AIR 1962, (Punjab) 446 and AIR 1956 (Allahabad) 677 as well as of Apex Court decision in AIR 1964 (SC) Page 215 that the Court while considering an application on limitation issue will consider the facts and circumstances not for taking too strict and pedantic stand which will cause injust....
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.... by Apex court in the case of State of Nagaland V. Lipok AO - 2005 (183) E.L.T. 337 (S.C.) that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file-pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. The State which represents collective cause of the community does not deserve a litigant-non-grata status. The Courts, therefore, are informed with the spirit and philosophy of the provision in the course of the interpretation of the expression of "sufficient cause". Merit is preferred to scuttle a decision on merits in turning down the case on technicalities of delay in presenting the appeal. It has also been held in that case that If appeals brought by Government are lost for defaults, no person is individually affected, but what, in the ultimate analysis, suffers is public interest. The decisions of Government are collective and institutional decisions and do not share the characteristics of decisions of private individuals. PUBLIC INTEREST WEI....
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....ould be laid to prove strict standards of sufficient cause. UNEXPLAINED DELAY RENDERS REMEDY FATAL 43. When the Special Leave Petition was filed by Customs in the case of Assistant Commissioner of Cus., Mumbai V. Francis Odillo Roezer -2005 (182) E.L.T. 439 (S.C.) that was found to be barred by time by 864 days. Going through the explanation furnished by the petitioner, the Apex Court hardly found any explanation except for giving details of the movement of the file from one table to another for which the Hon'ble Court directed the Chief Commissioner of Customs, Mumbai, to conduct an inquiry or to get an inquiry conducted by an officer not below the rank of Commissioner of Customs and give a categorical report to the Hon'ble Court as to why the concerned authorities did not act with promptitude in filing the special leave petition which may have enabled the respondent to escape from this Country. There appears to be much more than what meets the eye. Hon'ble Supreme Court got the expression from the explanation furnished that the matter was deliberately delayed by interested persons in the concerned Department. The Hon'ble Court had also expressed its grief stating that this is ....
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....decision by the Courts or whether cases require adjustment and should authorise the officers to take a decision or give appropriate permission for settlement. In the event of decision to file appeal needed prompt action should be pursued by the officer responsible to file the appeal and he should be made personally responsible for lapses, if any. Equally, the State cannot be put on the same footing as an individual. The individual would always be quick in taking the decision whether he would pursue the remedy by way of an appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or servants. Such position was highlighted in State of Haryana v. Chandra Mani and Ors. [1996 (3) SCC 132]; and Special Tehsildar, Land Acquisition, Kerala v. K.V. Ayisumma [1996 (10) SCC 634] . It was noted that adoption of strict standard of proof sometimes fail to protract public justice, and it would result in public mischief by skilful management of delay in the process of filing an appeal. VIGILANT IS PROTECTED 45. Just because Tribunal believes that ordinarily a litigant does not stand to benefit by lodging an appeal late and re....