ORDER
V.K. Agrawal, Member (T)
1. This is an application filed by the Revenue for condonation of delay of 9 days in filing the appeal against Order-in-Original No. 27/99, dated 8-2-99.
2. Shri Jagdish Singh, learned D.R., submitted that though the application has been filed for condonation of delay, in fact, there is no delay in filing the appeal; that the Board reviewed the impugned Order in exercise of the power under Section 35E(1) of the Central Excise Act vide Order 21-R/2000, dated 7-2-2000; that the Review Order was passed within one year from the date of the impugned Order; that the Review Order was sent to the Commissioner of Customs, New Delhi and subsequently the corrigendum was issued to the effect that in the Review Order for the word “The Commissioner (Adjudication), Central Excise, New Delhi,” “the Commissioner of Central Excise, Meerut-II” be read; that the Review Order was received by the applicants on 1-5-2001 and the appeal has been filed on 17-5-2001 which is within the period specified under Section 35E(4) of the Central Excise Act; that as such there is no delay in filing the appeal.
3. On the other hand Shri V. Lakshmikumaran, learned Advocate, submitted that as per the submissions made by the learned D.R. there was no delay in filing the appeal and as such the application for condonation of delay has become infructuous and should be dismissed as withdrawn; that the impugned Order is dated 8-2-99 and as per provisions of Section 35E{3) read with 35E(4) appeal should have been filed on or before 7-5-01; that as the appeal admittedly has been filed on 17-5-01 there is delay in filing the appeal and as per the decision of the Larger Bench of the Tribunal in the case of CCE, Mumbai v. Azo Dye Chem, 2000 (120) E.L.T. 201 the Tribunal has no power to condone the delay caused in filing the appeal beyond the period of 3 months allowed by Section 35E(4). The learned Advocate further submitted that the Review Order was amended by corrigendum dated 18-4-2000 and for the purpose of authorizing CCE, Meerut to file the appeal the Revenue Order has been issued beyond the period of one year from the date of the impugned Order and as such it is not valid under the law. He relied upon the decision in the case of CCE, Hyderabad v. Quinn India Ltd., 2000 (126) E.L.T. 715.
4. We have considered the submissions of both the sides. Section 35E(1) of the Central Excise Act empowers the Board to call for and examine the records of any proceeding in which a Commissioner of Central Excise as an Adjudicating Authority has passed any decision or Order for the purpose of satisfying itself as to the legality or to propriety of any such decision or Order and may, by order, direct such Commissioner to apply to the Appellate Tribunal for the determination of such point arising out of the decision or order as may be satisfied by the Board in its order. Sub-section (3) provides that no order shall be made after expiry of one year from the date of the Order of the Adjudicating Authority. Sub-section (4) provides that an application to the Tribunal has to be made within a period of 3 months from the date of communication of the Order under Sub-section (1). It is not in dispute that the Central Board of Excise & Customs issued the Review Order No. 21-R/2000, dated 7-2-2000 directing the Commissioner (Adjudication), Central Excise, New Delhi to apply to the Appellate Tribunal for the correct determination of the point specified in the Review Order. It has not been disputed by the respondents that this Review Order was passed by the Board within the time specified in Section 33E(3) of the Act. Subsequently a corrigendum was issued on 18-4-2000 by which in the Review Order the following corrections were carried out :-
“In para 13 at page 8 for the words “The Commissioner (Adjudication), Central Excise, New Delhi,” Read “The Commissioner of Central Excise, Meerut-II.”
We do not find substance in the contention of the learned Advocate for the Respondents that this corrigendum should be regarded as a new Review Order. As far as the Review of the Order is concerned, the Board has reviewed the Adjudication Order passed by the Commissioner, Central Excise within the time limit provided in the Act and the Board has found the Order not correct and liable to be set aside and directed the Commissioner to file an application to the Appellate Tribunal for correct determination of the specified points. Mere change of the Commissioner in the Review Order by corrigendum will not make it, in our opinion, a new Review Order. The Appellate Tribunal has taken a similar view in the case of CCE, Bhubaneshwar v. Konark Cylinders & Containers Ltd., 1994 (73) E.L.T. 702 wherein it was held that contention regarding corrigendum constituting a fresh notice is not acceptable merely because a wrong Rule was quoted which was corrected by corrigendum subsequently as the grounds had been stated clearly. The decision in the case of Quinn India Ltd. is not applicable as the facts are completely different. In the said matter initially in the Review Order point of limitation was not specified by the Board A corrigendum was issued for including the plea of limitation on the basis of which the Commissioner had decided the matter in favour of the Respondents. In view of these facts the Tribunal held that the corrigendum in that matter constituted a fresh ground on limitation under review procedure undertaken by the Board. We find substance in the submission of the learned D.R. that the application has been filed by CCE, Meerut within the time limit specified in the Central Excise Act. Sub-section (4) of Section 35E prescribed a period of 3 months from the date of communication of the Review Order for filing the application to the Tribunal. As in the present matter the application has been filed within the period of 3 months there is no delay in filing the same. Accordingly the application of condonation of delay has become infructuous and is dismissed as such.
Both the matters are posted for regular hearing on 20-2-2002.