- (1.) 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. v. Commissioner (Appeals), Central Excise reported in : [2002] UPTC 1018 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 v. CCE reported in : [2008] 10 RC 174 : [2008] 12 VST 542 (SC) : [2008] 221 ELT 163 (SC). Reliance has been placed on the decision of the apex court in the case of V.S. Charati v. Hussein Nhanu Jamadar reported in : [1999] 1 SCC 273.
(2.) 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 under section 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 under section 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. v. Commissioner (Appeals), Central Excise : [2002] UPTC 1018; 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.
(3.) DURING the pendency of the appeal before the Tribunal, the apex court has decided the issue in the case of Singh Enterprises v. CCE : [2008] 10 RC 174 : [2008] 12 VST 542 (SC), 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 v. Hongo India P. Ltd. reported in : [2010] 2 GSTR 305 (SC) : [2009] 5 SCC 791 (SC), this court has dismissed the appeal.;