Can an application for condonation be filed for delay in passing of Review order by Commissioner?
WE received this mail –
“Working in the Technical section of a Central Excise Commissionerate is a great learning experience. Recently, I came across an interesting situation. The order passed by the Deputy Commissioner was reviewed by the jurisdictional Commissioner of Central Excise. Nothing wrong with this, except that the review order was after three months from the date of communication of the order passed by the original authority. The Commissioner while directing the Deputy Commissioner to file an appeal before the Commissioner (Appeals) has also directed that an application for Condonation of Delay be filed.
I went through the review and appeal provisions, sections 35E and 35 of the CEA, 1944, in question and which read -
“35E. Powers of Committee of Chief Commissioners of Central Excise or Commissioner of Central Excise to pass certain orders.-
(1) x x x
(2) The Commissioner of Central Excise may, of his own motion, call for and examine the record of any proceeding in which an adjudicating authority subordinate to him has passed any decision or order under this Act for the purpose of satisfying himself as to the legality or propriety of any such decision or order and may, by order, direct such authority or any Central Excise Officer subordinate to him to apply to the Commissioner (Appeals) for the determination of such points arising out of the decision or order as may be specified by the Commissioner of Central Excise in his order.
(3) Every order under sub-section (1) or sub-section (2), as the case may be, shall be made within a period of three months from the date of communication of the decision or order of the adjudicating authority.
(4) Where in pursuance of an order under sub-section (1) or subsection (2), the adjudicating authority or the authorised officer makes an application to the Appellate Tribunal or the Commissioner (Appeals) within a period of one month from the date of communication of the order under sub-section (1) or sub-section (2) to the adjudicating authority, such application shall be heard by the Appellate Tribunal or the Commissioner (Appeals), as the case may be, as if such application were an appeal made 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 35B shall, so far as may be, apply to such application.
35. Appeals to Commissioner (Appeals).- (1) Any person aggrieved by any decision or order passed under this Act by a Central Excise Officer, lower in rank than a Commissioner of Central Excise, may appeal to the Commissioner of Central Excise (Appeals) hereafter in this Chapter referred to as the Commissioner (Appeals) within sixty days from the date of the communication to him of such decision or order:
Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days.”
A careful reading of the above indicates that –
++ the review order has to be necessarily passed within the period of three months specified in section 35E(3) of the CEA, 1944 and there is no relaxation or extension available in the law;
++ the condonation of delay envisaged in proviso to section 35(1) of the CEA, 1944 is with regard to delay in filing the appeal before the Commissioner (Appeals) after the review order has been received by the adjudicating authority as mandated in section 35E(4) of the CEA, 1944 and it cannot mean to bring under its umbrella the period of three months mentioned in section 35E(3) of the CEA, 1944.
Clearly, the direction of the Commissioner to file an application for condonation of delay along with the appeal is erroneous and cannot stand scrutiny of law.
Refusing to abide by his diktat is also fraught with serious consequences and hence as an obedient officer, the appeal was filed before the Commissioner (Appeals) seeking condonation of the delay – delay on the part of the Commissioner to pass a review order within the mandatory period of three months!
It's fun…real fun…
DDT adds
The issue as they say is no more res integra, as they say. The Tribunal in Commissioner of Central Excise, Raipur vs Monnet Ispat & Energy Ltd , had held,
“The Tribunal has ample power to condone the delay in filing the appeal including the one filed under Section 35E(4) of the said Act. The period which can be condoned in relation to filing of the appeal under Section 35E(4) of the said Act would include the period availed by the review committee in terms of Section 35E(1) or 35E(2) of the said Act. As regards the appeals by the Department in terms of Section 35E(4), the same should be filed within one month from the date of communication of the order under sub-section (1) or sub-section (2) of the said section but not beyond four months from the date of communication of order of the adjudicating authority to the review committee. In case there is any delay in this regard, the same can be condoned in exercise of powers under Section 35B(5), on being satisfied about sufficient cause for such delay and power to condone the delay would include the period availed under Section 35E(1) or (2) by the reviewing committee to decide about filing of the appeal. ”