ORDER
Krishna Kumar, Member (J)
1. Heard both sides.
2. In this case the Order-in-Original was passed by the Commissioner of Customs (Import) on 2-7-05. Being aggrieved by the said order, the Revenue has filed an appeal on 20-2-06. The appeal was filed by Shri. S.B. Kamath, Dy. Commissioner of Customs. Subsequent the Revenue has filed another appeal on 21-2-06 against the same Order-in-Original. The appeal has now been filed by the Commissioner of Customs (Import). The submission of the ld. DR is that both the appeals contain the same contention. The appeal was initially filed by the Dy. Commissioner which was well in time. Now in view of the provisions of Section 129D of the Customs Act, 1962 the appeal has been filed by the Commissioner. Therefore, the appeal filed by the Commissioner may be treated in time. He drew my attention to Sub-section (4) of Section 129D and submits that the Sub-section (4) clearly authorizes the Commissioner of Customs to file the appeal himself or authorize any other officer of the Customs. Since initially the appeal was filed by the Dy. Commissioner and now by the Commissioner keeping in view the provisions of sub-section, both appeals are in time. He submits that Sub-section (2) of Section 129D clearly provides that the Commissioner of Customs may of his own call for examination of records of the proceedings in which adjudicating authority sub-ordinate to him has passed any order.
3. On bare perusal of the provisions as contained in Sub-section (2) read with Sub-section (4) it becomes clear that the provisions of Sub-section (2) are attracted only when the order has been passed by an officer sub-ordinate to the Commissioner of Customs. In the present case it is an undisputed fact that the order has been passed by the Commissioner of Customs. Therefore, I am not convinced that the provisions of Sub-section (2) read with Sub-section (4) are attracted in this case. The ld. Counsel for the respondents places reliance on the provisions of Section 129D(1) and submits that the said section clearly provides that the Committee of Chief Commissioners of Customs are authorized to call for the record and satisfy themselves with regard to an order passed by the Commissioner of Customs. He draws my attention to the Order of the Committee of Chief Commissioners of Customs dated 6-1-2006 and submits that as per the authorization given by the Committee of Chief Commissioners, the Commissioner of Customs (Import) Air Cargo Complex, Mumbai was authorized to file the appeal before the Tribunal. Since the Commissioner has failed to file appeal by the prescribed date i.e. 12-4-2006 being the expiry date of limitation for filing the appeal, the present appeal filed by the Commissioner is time barred. He submits that there are no provisions in the Act for condonation of delay by the Tribunal. Since the present appeal has been filed on 21-4-06 the appeal is clearly time barred. To support his contention, he relies on the decision of the Larger Bench in the case of Commissioner of Central Excise and Customs v. Pradeep Kumar Shyam Sukha vide Order No. M/298 & 299/WZB/2005/EB/C-I dated 29-11-05 2006 (202) E.L.T. 605 (Tribunal) and draws my attention to para 6 thereof which is reproduced as under:
In this case, it is not a question of mere presentation of an appeal. The appeals have been filed by a Superintendent (Appeals) and filing of an appeal is certainly cannot be a ministerial function, but a substantive function, which cannot be further delegated to any other officer by the Commissioner who is the officer to whom a direction was given by the Board under Section 35E(1).
4. Similarly he also places reliance on the Larger Bench decision in the case of CCE, Mumbai v. Azo Dye Chem as . Para 6 from this order is reproduced as under:
6. Appeals to this Tribunal are governed by the provisions contained in Section 35B of the Act. Any person aggrieved by the order mentioned therein can prefer an appeal to the Tribunal. So also if the Commissioner is of the view that an order passed by the Appellate Commissioner under Section 35B of the Act is not legal or proper, he can authorize an officer to prefer an appeal to this Tribunal. An appeal by the aggrieved party or by the Commissioner in the above situation should be filed within three months from the date on which the order sought to be appealed against was communicated. Such an appeal, if happened to be filed beyond the period of three months, can be admitted by the Tribunal because of the specific power conferred on it by Section 35B(5) of the Act. Such a power has not been given to this Tribunal in the case of applications contemplated by Section 35E(4) of the Act. Section 35E(4) further states that the provisions of the Act regarding appeals shall, so far as may be, apply to “such application”. This provision does not authorize this Tribunal to extend all the provisions that are applicable to appeals before it to an application falling within Clause (4) of Section 35E. Provisions of the Act regarding appeals, so far as may be, alone can apply to such application. As per Venkataramaiya’s Law Lexicon, Second edition, Volume IV, the words “so far as may be” mean to the extent it is applicable. Ramanatha Aiyar’s Law Lexicon states that “so far as May be” means to the extent possible. The scope of these words was dealt with by Their Lordships of the Supreme Court in Dr. Pratap Singh v. Director of Enforcement AIR 1985 SC 989. According to Their Lordships, the expression “so far as may be” has always been construed to mean that those provisions may be generally followed to the extent possible. When understood with this limitation, it is clear that all the provisions of the Central Excise Act, 1944, regarding the substantive right of appeal this Tribunal are not extended to an application contemplated by it. Only those which are procedural in nature can apply to such an application.
His submission is that the provisions with regard to filing of an appeal as contained in Section 129D are pari materia with Section 35E of the Central Excise Act, 1944.
5. After hearing, perusal of the records and the case laws relied on by the respondent, I am very clear in my mind that the provisions of Sub-section (2) of Section 129D read with Sub-section (4) as referred to by the Ld. DR are not attracted in this case because Sub-section (2) clearly refers to the Order passed by the subordinate authority to the Commissioner of Customs. Whereas in the present case the order has been passed by the Commissioner himself. Therefore, the appeal is clearly time-barred.
6. The appeal is, therefore, dismissed.
(Dictated in Court)