2010 (2) TMI 545

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....n in terms of Section 35E of the Central Excise Act, 1944 on 6th of July, 2009. The Committee communicated its decision to the appellants on 20th of October 2009. The appeal was filed on 16th Nov., 2009. It is not in dispute that the appeal was filed within one month from the date of communication of the decision of the Committee in terms of sub-section 4 of Section 35E of the said Act. It is, however, the submission on behalf of the respondent that the appeal has not been filed within 4 months from the date of communication of the impugned order dated 30th June, 2009 and consequently, that decision by the Committee having taken beyond the period of three months, the appeal is not maintainable. 2. Section 35E(3) provides that a Committee o....

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....eal should be held as not maintainable. The condonation is sought to be pleaded on behalf of the Department while drawing our attention to the decision in the matter of Commissioner of Central Excise, Bhubaneswar-II v. Bhushan Ltd. reported in 2008 (232) E.L.T. 238 while contending that the decision in terms of Section 35E(3) is an administrative decision and that the Tribunal has to only ascertain whether the appeal has been filed within one month from the date of communication of said decision or not. 4. Perusal of Section 35B(3) clearly provides the period of 3 months from the date of communication of the order of the adjudicating authority, as being the period for filing the appeal by the aggrieved party. Section 35E(4) prescribes furt....

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....ion 35E which would be an administrative order, and that it will be beyond the scope of judicial review of the Tribunal in the Appellate Jurisdiction, and that only aspect, which is required to be seen is whether the appeal has been filed within 30 days from the date of communication of said decision. 6. It is to be noted that Section 35E(4) does not appear to have been incorporated as proviso to Section 35B(3). Rather it discloses a period of one month after the expiry of initial period of three months, which is available for filing the appeal in terms of Section 35B(3). In other words, in case the Department approaches the Tribunal beyond the period of four months from the date which is specified under Section 35B(3) is the Department re....