Raltronics India P. Ltd. vs Customs, Excise and Service Tax Appellate Tribunal

This is review application for the review of the order dated August 20, 2009. The learned counsel for the applicant submitted that since in the case of applicant itself the Division Bench of this court vide order dated July 2, 2007 has approved the view taken in the case of Jai Hind Bottling Company (P) Ltd. Vs. Commr. (Appeals) C. Ex., and directed the Tribunal to reconsider the matter. Since the said order has not been challenged by the Department and is not being set aside by the higher court, is binding between the parties and, therefore, it is not open to the Tribunal to take a view that the Commissioner of Central Excise (Appeals) had no power to condone the delay following the decision of the apex court in the case of Singh Enterprises Vs. Commissioner of Central Excise, Jamshedpur and Others, . Reliance has been placed on the decision of the apex court in the case of V.S. Charati Vs. Hussein Nhanu Jamadar (Dead) by Lrs, .

We do not find substance in the argument of learned counsel for the applicant or any merit in the review application.

In the present case, the appeal was filed beyond time before the Commissioner (Appeals). The Commissioner (Appeals) has rejected the appeal on the ground that u/s 35 of the Central Excise Act, 1944 the power to condone the delay was only thirty days and not beyond it. Against the said order, the applicant filed an appeal before the Tribunal. The Tribunal upheld the view of the Commissioner (Appeals), against which applicant filed appeal before this court. This court allowed the appeal with the following observations:

The question in this appeal field u/s 35G is whether the delay beyond the period prescribed by the aforesaid proviso could be condoned by the Commissioner (Appeals). A learned single judge of this court has taken the view in the case of Jai Hind Bottling Company (P) Ltd. Vs. Commr. (Appeals) C. Ex., ; relying upon section 5 read with section 20(2) of the Limitation Act, 1963, that even delay beyond the period prescribed by the aforesaid proviso can be condoned provided ground exists for condonation. No reason has been shown to us to take a view different from the said decision.

In the circumstances, we allow this appeal. Set aside the impugned order of the Tribunal. The matter will be reconsidered by the Tribunal expeditiously.

During the pendency of the appeal before the Tribunal, the apex court has decided the issue in the case of Singh Enterprises Vs. Commissioner of Central Excise, Jamshedpur and Others, , wherein it has been held that the Commissioner (Appeal) is empowered only to condone the delay of thirty days in terms of section 35 of the Central Excise Act, 1944 and section 5 of the Limitation Act, 1963 is not applicable. Following the said decision, the Tribunal has rejected the appeal and has affirmed the order of the Commissioner (Appeals), against which the applicant filed Central Excise Appeal No. 368 of 2008. Following the decision of the apex court in the case of Commissioner of Customs and Central Excise Vs. Hongo India (P) Ltd. and Another, , this court has dismissed the appeal.

We are of the view that this court while deciding the appeal vide order dated July 2, 2007 has remanded back the matter to the Tribunal for reconsideration. This court has not condoned the delay and when the matter came up for consideration before the Tribunal. The Tribunal following the decision of the apex court in the case of Singh Enterprises Vs. Commissioner of Central Excise, Jamshedpur and Others, has held that the Commissioner (Appeals) is empowered only to condone the delay of 30 days and not beyond that, in terms of section 35 of the Central Excise Act, 1944 and section 5 of the Limitation Act, 1963 does not apply. Therefore, even if it is taken that the decision of this court is binding upon the parties, it will not help the applicant because no positive view condoning the delay has been taken by this court and matter has been remanded back for reconsideration. Thus, the Tribunal has to decide the appeal in view of the law laid down by the apex court.

In the facts and circumstances, we do not find any merit in review application to review the order dated August 20, 2009, which is in accordance to law and does not require any interference. The review application is, accordingly rejected.