CESTAT has power to condone delay in filing application consequent to Review by Committee of Chief Commissioners: SC
IF in the rarest of rare cases, a Commissioner passes an order in favour of an assessee, the order is promptly reviewed by the Committee of Chief Commissioners and invariably, the Committee directs the Commissioner to apply to the Tribunal to set aside his own order. The Committee is required to pass the review order within three months of the date of communication of the order and the Commissioner is to file the application with the Tribunal within one month of the receipt of the review order. Once such an application is filed by the Commissioner, it is treated as an appeal and all the appeal provisions will apply mutatis mutandis. (Section 129A in Customs cases).
Now, if the Commissioner fails to apply within one month as prescribed, can the Tribunal condone the delay. This was the issue before the Supreme Court in a case in which the judgement was delivered on 30th October 2012.
The Commissioner had dropped proceedings against a CHA. The Committee directed the Commissioner to apply to the Tribunal to get his order set aside. The Commissioner made his application with a delay of ten days and filed a Condonation of Delay Petition. The Tribunal relied on the Larger Bench of the Tribunal decision in CCEx. Mumbai vs. Azo Dye Chem - and held that the Tribunal has no power to condone the delay caused in filing such appeals by the Department. See 2006-TIOL-165-CESTAT-Mum.
The Commissioner took the matter to the High Court and the High Court held that the Tribunal indeed had such powers.
Against this order of the High Court, the CHA is before the Supreme Court.
The issue framed by the Supreme Court was, whether it is competent for the Tribunal to invoke Section 129A(5) of the Act where an application under Section 129D(4) has not been made by the Commissioner within the prescribed time and condone the delay in making such application if it is satisfied that there was sufficient cause for not presenting it within that period.
And the Supreme Court emphatically held that "it is competent for the Tribunal to invoke Section 129A(5) where an application under Section 129D(4) has not been made within the prescribed time and condone the delay in making such application if it is satisfied that there was sufficient cause for not presenting it within that period."
This judgement pronounced on 30th October was available only yesterday and we bring it to you today.