2008 (3) TMI 592

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....before the Settlement Commission at New Delhi in terms of Section 32E of the Central Excise Act. The impugned order was passed on 30-7-2004 and the same is received by the assessee on 8-8-2004. The appeal should have been filed on 7-11-2004 while it has been filed on 11-10-2007 on the ground that matter was pending before the Settlement Commission. It is pointed out by the appellants that the application for settlement cannot be filed before the Settlement Commission until and unless, no appeal has been filed before the higher authorities including Tribunal. They have narrated the sequences and facts including the matter having been taken up to the Delhi High Court on Writ Petition by department and the Delhi High Court having dismissed the....

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....als against the impugned Order-in-Original and hence, the same has been filed with an application for condonation of delay. The applications for condonation of delay have been necessitated on account of Tribunal's observations regarding the powers of the Settlement Commission. It is submitted that the appellants were pursuing an alternate remedy before the Settlement Commission in terms of the provisions of the Central Excise Act. They cannot file an appeal before the Tribunal, as they had approached the Settlement Commission for settlement of the matter in terms of the Section 32E of the Central Excise Act. In the meanwhile, the Commissioner had passed the order which he should have not done in terms of law, as the matter was before the Se....

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....ue appeals to observe that Settlement Commission was not justified in remanding the matter. He submits that they were under bona fide belief that alternate remedy which they were pursuing was justified and that they were not required to have filed the appeals against the impugned Order-in-Original till such time as the Settlement Commission decided the issue. In view of the observations of the Tribunal in the said Final Order, they are now filing these appeals with the applications for condonation of delay. They rely on the Supreme Court's judgment rendered in Mauria Udyog. Ltd. v. CCE, Delhi-II - 2002 (146) E.L.T. 37 (S.C.) which lays down the principle of Doctrine of Merger. They also rely on the judgment rendered in the case of Pasupathi....

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....l Ltd. - 1997 (91) E.L.T. 268 (S.C.) (ii)    CCE, New Delhi v. LML Ltd. - 2002 (143) E.L.T. 431 (T-LB). (iii)   CCE, Patna v. Vishal Rolling Mills (P) Ltd. - 2004 (165) E.L.T. 249 (Tri.-Kolkata) (iv)   CC (Import), Mumbai v. Shree Balaji Automobiles - 2005 (190) E.L.T. 356 (Tri.-Mumbai) 5. We have carefully considered the submissions. We take up the point pertaining to the maintainability of the appeal. The learned representative for the Revenue submitted that as the assessee did not file cross appeal against the Revenue's appeal, therefore the order passed by the Tribunal in the Revenue appeal is deemed to have been disposed off and the demands against them are deemed to have been confirm....