TaxTMI 
TaxTMI 
2012 (11) TMI 242
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....nal rate of duty for manufacture of excisable goods) Rules. 1996. The respondent accordingly in accordance with the provisions of these Rules applied to the jurisdictional central excise authority for registration which was granted to them. The department alleged that the respondent have imported certain goods by declaring their false description in the imports documents and in this manner, they have wrongly availed duty exemption under notification no.25/05-Cus dated 1.3.2005. It is on this basis that a show cause notice dated 22.4.2010 was issued to the respondent for - (a) Denying the benefit of exemption notification No.25/05 dated 1.3.2005, as amended, in respect of the goods, in question, and on this basis, recovery of customs duty amounting to Rs.4,25,16,681- under Section 28(1) of the Customs Act, 1962 read with Rule 8 of the Customs (Import of Goods at concessional rate of Duty for manufacture of Excisable goods) Rule, 1996 along with interest on this duty at the applicable rate under Section 28 AB of the Central Excise Act, 1962; (b) Confiscation of the goods imported under Section 111(o) of the Customs Act 1962; and &n....
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.... this review appeal and that in this regard, he relies upon judgement of Larger Bench of the Tribunal in the case of CCE, Raipur Vs. Monnet Ispat & Energy Ltd. reported in 2010 (257) ELT 239 (Tribunal-LB). 4. Shri Bipin Garg, Advocate, ld. Counsel for the respondent pleaded that this is an appeal filed by the department under Section 35 E(4) of the Central Excise Act, 1944 in pursuance of the review order passed by the Reviewing Authority under Section 35 E(1) of the Act, that in respect of this review appeal filed by the department, which is required to be filed by the department in terms of the provisions of Section 35 E(4) within a period of one month from the date of communication of the order of the Reviewing Authority to the Adjudicating Authority, there is no provision for condonation of delay, that the provisions of Section 35B(5) of the Act providing for condonation of delay in respect of an appeal filed under Section 35 B(1) or cross objection filed under Section 35 B(4) are not applicable to the review appeal filed by the department under Section 35E(4), that in this regard, he relies upon the judgement of the Larger Bench of the Tribunal in the case of CCE, Mumbai Vs....
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....al case of CCE, Raipur Vs. M/s. Monnet Ispat & Ispat & Energy Ltd. (supra). However, according to the respondent, this delay is not condonable and in this case, the respondent rely upon the judgment of earlier Larger Bench of the Tribunal in the case of CCE, Mumbai Vs. Azo Dye Chem (supra). 7. Section 35 E of the Central Excise Act, 1944 contains the provisions regarding the filing of the review appeals by the department against the orders-in-original passed by the various adjudicating authorities - Commissioner or officers lower in rank to the Commissioner. These review appeals by the department are a two step process. The first step is when the Reviewing Authority - Committee of Chief Commissioner in case of orders by the Commissioner and Commissioner in case of the orders-in-original passed by the officers lower in rank to the Commissioner, is required to examine the order-in-original passed by the adjudicating authority for satisfying itself about the legality and propriety of the order and if in the opinion of the reviewing authority, the order passed by the adjudicating authority is not legal and proper, the reviewing authority is required to pass an order under Section 35....
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....is clear that where in pursuance of an order passed under sub-section (1) or sub-section (2) of Section 35E, the adjudicating authority makes an application before the Appellate Tribunal or Commissioner (Appeals) within a period of one month from the date of communication of the order passed by the reviewing authority, such application shall be heard by the Appellate Tribunal or Commissioner (Appeals), as the case may be, as if it were an appeal against the decision or order of the adjudicating authority and the provisions of this Act regarding appeals including the provisions of sub-section (4) of Section 35 B shall, so far as may be, apply to such applications. In sub-section (4), there is no provision for condonation of delay by the Tribunal or the Commissioner (Appeals) when the application by the concerned adjudicating authority is filed after expiry of period of one month from the date of communication of the Reviewing Authority's order. In fact, from the language of sub-section (4), it is clear that the appellate authority-appellate Tribunal or Commissioner (Appeals), as the case may be, shall entertain the application and treat it as an appeal only when the application has ....
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....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. 5. Clause (4) of Section 35E provides that the Appellate Tribunal shall hear the application filed by the adjudicating authority as if it were an appeal and the provisions regarding appeals contained in the Act will apply. This statement contained in clause (4) can only mean that this Tribunal should dispose of that application as if an appeal has been filed in conformity with the provisions relating to appeals. In other words, this provision will not make the substantive rights relating to appeal to apply to applications filed by the adjudicating authorit....
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.... in 1986 (26) E.L.T. 99 in support of his contention that this Tribunal has got ample power to condone the delay caused in filing an application falling within the purview of Section 35E(4). In that case, the facts were as follows. Adjudicating authority, namely, the Deputy Collector passed an order which was against the department. The Collector of Central Excise, Patna passed an order directing the Deputy Collector to file an appeal against the Deputy Collector's order-in-original. Thereupon, an appeal was filed before the Collector (Appeals). He set aside the order of the Deputy Collector and decided the issue against the assessee. On appeal by the assessee, a preliminary question arose as to whether appeal is maintainable in terms of Section 35B of the Act. The majority took the view that the appeal is maintainable holding that an appeal would lie to the Appellate Tribunal under Section 35B against an order passed by the Collector (Appeals) under Section 35E(4) of the Act. This decision has no relevance to the issue raised in the petitions before us. Learned Departmental Representative then relied on decision of this Tribunal in Swarajya Cement India Ltd. v. Collector of Centra....
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....r of Central Excise with all the eighteen noticees as respondents. During the pendency of the appeal, Revenue sought to file seventeen supplementary appeals against each of the noticees who were mentioned as respondents in the earlier appeal. Then the question arose as to whether the seventeen appeals are to be admitted after condoning the delay. The Bench took the view that appeal having been preferred against all the eighteen noticees by filing the first appeal, the filing of supplementary appeals was purely procedural. The Bench observed: "Since adjudication order was one and since the review was in respect of the allegations dropped, reading the two together and finding that since the composite appeal pertained to the persons against whom allegations have been dropped and they were required to be examined in appeal, therefore, the list was sufficient and one composite appeal served the purpose. In regard to issue of summons, we note that had the appeals come up for hearing, summons would have gone to all the parties mentioned in the list. We have also perused the case law cited and relied upon by both the sides. We have considered t....