Customs, Excise and Gold Tribunal - Bangalore
Cce vs Itc Ltd. on 2 February, 2005
Equivalent citations: 2005(192)ELT623(TRI-BANG)
ORDER S.L. Peeran, Member (J)
1. The Revenue has filed this appeal belatedly after expiry of 667 days. The Commissioner has not filed any affidavit in support of the application for condonation of delay in filing the appeal. He has also not verified the application but it has been verified by the Additional Commissioner while the application has been signed by the Commissioner. In terms of the time chart, it is seen that the order passed by the Commissioner (Appeals) in favour of the assessee was accepted by the Commissioner on 22.10.2002. The Board also did not take any step but gave direction to the field formations to keep the matter pending on such cases. However, on 26.9.2003, the Board issued Circular No 749/65/2003 Cx. dated 26.09.2003 in file No. 387/67/99-JC directing the field formations to file an appeal against the adverse decisions on the issue of cum-duty price in future cases. On 18.12.2003, another appeal of the Department against some other assessee was dismissed by CESTAT, Bangalore by following ratio of the Apex Court judgement rendered in the case of Maruti Udyog Ltd. [2002 (141) ELT 3 (S.C.) and the Tribunal judgment rendered in the case of M/s Shri Chakra Tyres [1999 (108) ELT 361 (T-L.B.)] which was also upheld by the Apex Court as reported in 2002 (142) ELT A279 (S.C.). The copy of the Tribunal Final Order No. 1754/2003 dated 18.12.2003 in other assessee's matter was received by the Commissioner on 16.2.2004. On 23.2.2004, they sent a proposal to the Board to file an appeal against this order. On 09.3.2004, the Board called for details. On 24.3.2004, the Commissioner sent a reply to the said Board's letter dated 9.3.2004. On 09.8.2004, a letter dated 09.8.2004 was received from the Board directing the Chief Commissioner to file an appeal against the impugned order. The Chief Commissioner on 26.08.2004 addressed a letter to the Board explaining the reasons for non-filing of appeal against the impugned order. Thereafter, the Commissioner has decided to file the present appeal along with the application for condonation of delay on 7.10.2004. Thus the delay is 667 days.
2. We have heard Smt. Shoba L. Chary, learned JCDR and Shri Anil B. Divan, learned Sr. Advocate. Both the sides argued the matter in support of their contentions.
3. On a careful consideration of the facts and circumstances of the case and on submissions made by both the sides, we notice that no sufficient grounds have been made out by the Commissioner for condonation of delay in filing the appeal. The order was passed on 30.8.2002 and the same was accepted by the Commissioner. Therefore, in terms of the Larger Bench of Tribunal ruling rendered in the case of Collector of Customs v. Carborandum Universal Ltd. [1990 (47) E.L.T. 61 (Tribunal)], the enormous delay in the present matter cannot be condoned. In the cited case, the order of the Commissioner (Appeals) was accepted and the initial decision was not to contest the order. Subsequently there was a change in the mind to file appeal. However, at that time the statutory period to file an appeal had lapsed. The Contention on this ground was rejected as no sufficient cause. In the case of Commissioner of C. Ex., Indore v. Navin Chemicals Enterprises [2001 (130) E.L.T. 672 (Tri. - Del.), the ground of subsequent instruction from the Board to file appeal in the similar matter was also not accepted for granting condonation of delay in filing the appeal. The same view was expressed in the case of Commissioner of Central Excise, Indore v. J.K. Industries Ltd. [2000 (136) E.L.T. 809 (Tri. - Del.). In the case of the Commissioner of Central Excise, Chennai v. Titan Industries Ltd. [2001 (135) E.L.T. 515 (Tri. - Chennai)] the delay of 100 days in one case and 23 days on other case was not condoned as the Department had accepted the order of the Commissioner. Later, the Board changed its view after two months and filed an appeal. In that case, it was stated that the ground is not sufficient cause for condonation of delay. We find in the time chart that the Commissioner is referring to the Board Circular No 749/65/2003 Cx. dated 26.9.2003 directing the field formations to file appeal against the adverse decisions of the issue of cum-duty price. Further, the Board withdrew this Circular vide Circular No 803/36/2004 Cx. dated 27.12.2004 as the Apex Court has rejected the Review Petition No 75/2003 filed by the Revenue in case of Maruti Udyog Ltd. Therefore the issue pertain to cum-duty price has already been settled by the Tribunal following the Apex Court judgement. The Board has recalled their Circular dated 26.9.2003 by Circular dated 27.12.2004. Therefore the grounds urged in the COD application does not survive as the matter pertaining to the assessee herein has attained finality. We also find that the Revenue appeal against the assessee in Civil Appeal No 4166 of 2000 has also been rejected on the ground that there is no question of law arise in the Revenue's appeal. The Apex Court has referred to the impugned order dated 30.8.2002. There is no matter pending for consideration by the Apex Court or by the Tribunal. It is unfortunate that in the circumstances, the Commissioner should have filed the present application without sufficient cause for condonation of delay. The Apex Court did not accept the belated delay of the Revenue in filing the appeal after a lapse of 839 days in the case of Commissioner of Central Excise, Bangalore v. Agro Extracts Ltd. [2002 (144) ELT 6 (S.C.)] The learned Attorney General submitted that the delay is shocking and the manner in which the file has been dealt with even more disturbing. He has stated before the Apex Court that the Union proposes to hold an inquiry into the matter. In this case, when the Commissioner's (Appeals) order was accepted by the Revenue on 22.10.2002, nothing prevented the Board to take steps, but no steps were taken despite the Board Circular No 749/65/2003 Cx. dated 26.9.2003. In terms of the Time Chart, when the Revenue decided to file an appeal against another order of another assessee [Tribunal's Final Order No 1754/2003 dated 18.12.2003], the steps should have been taken to file appeal in this case, but no steps have been taken. There is no explanation as to why it has delayed at every stage as shown in the time chart. Even if the Chief Commissioner received the Board letter on 9.8.2004, no steps were taken to file appeal up to 07.10.2004 and there was no explanation of the delay at every stage in this matter. The Commissioner has merely stated about the issue being kept pending before the Apex Court for filing Review Petition. Further, we find that the Review Petition No. 75 of 2003 filed by the Revenue has already been rejected by the Apex Court in the case of M/s Maruthi Udyog Ltd. in Civil Appeal No 3783 of 2000. The Board has issued Circular No 803/36/2004 dated 27.12.2004 withdrawing their earlier Circular dated 26.9.2003. There is no sufficient cause shown for condonation of enormous delay in the matter. The laches and negligence are patent on record in the matter. Hence the delay cannot be condoned. The COD application is rejected and as a result, the appeal is also rejected.
(The operative portion of the order has been pronounced in the open court on conclusion of hearing on 2.2.2005) T.K. Jayaraman, Member (T)
4. While concurring with the decision of the learned Member (Judicial), I have to make certain observations to put the entire issue in proper perspective. In this case, the Order-in-Appeal was issued on 30.8.2002. When the order of the Commissioner (Appeals) is received, the Jurisdictional Commissioner of Central Excise has a statutory duty to examine such order to take action as provided under Section 35B (2) of the Central Excise Act, 1944. The said section is reproduced below:-
Section 35B (2) "The [Commissioner of Central Excise] may, if he is opinion that an order passed by the Appellate [Commissioner of Central Excise] under section 35, as it stood immediately before the appointed day, or the [Commissioner (Appeals)] under section 35A, is not legal or proper, direct any Central Excise Officer authorised by him in this behalf (hereinafter in this Chapter referred to as the authorised officer) to appeal on his behalf to the Appellate Tribunal against such order."
5. As per section 35B (2), the time limit for taking action in the Order-in-Appeal received is within three months from the date of communication of the said Order-in-Appeal. In the instant case, the date of communication in the Order-in-Appeal is 30.8.2002. Therefore, the Jurisdictional Commissioner had to take action on the Order-in-Appeal before 30.11.2002. As seen from the time chart, the Jurisdictional Commissioner has accepted the Order-in-Appeal dated 30.8.2002 on 22.10.2002. The acceptance of the Order-in-Appeal is not an empty formality. Normally the Order-in-Appeal is scrutinised thoroughly before accepting them. In the instant case, it is seen that the Order-in-Appeal has relied on the decision of the Apex Court. As per Article 141 of the Indian Constitution, the law declared by the Supreme Court shall be binding on all courts within the territorial India. Under these circumstances, the Jurisdictional Commissioner was duty bound to accept the Order-in-Appeal dated 30.8.2002. Once the Jurisdictional Commissioner accepts the Order-in-Appeal in accordance with Section 35B (2), he becomes functus officio. There is no provision in the Central Excise Act to reverse the decision of the Jurisdictional Commissioner. Neither the Board nor the Chief Commissioner has any power under Section 35B or any other section to direct the Jurisdictional Commissioner to file an appeal after he has accepted the Order-in-Appeal under Section 35B (2). Moreover, in this case, the delay in filing the appeal has arisen not on account of any inaction on the part of the Jurisdictional Commissioner. Even the Board's Circular dated 26.9.2003 which is a cause for further proceedings in this issue was received after one year from the date of issue of the Order-in-Appeal. On that date also, the Jurisdictional Commissioner was disabled from filing an appeal as he had already accepted the Order-in-Appeal. The Board's Circular could not have been used to re-open a case decided on 30.8.2002. The Department sent a proposal for filing Civil appeal against the Final Order of CESTAT dated 18.12.2003 only on account of the Board's Circular dated 26.9.2003. Ultimately, the Board gave direction to the Chief Commissioner, Bangalore to file appeal along with application for condonation of appeal against the Order-in-Appeal dated 30.8.2002 on 9.8.2004. Since the Department felt that the grounds for filing an appeal against the Order-in-Appeal dated 30.8.2002 were not strong, there was some correspondence with the Board explaining in detail the reason for non-filing of the appeal against the Order-in-Appeal dated 30.8.2002. The second letter dated 30.9.2004 was received from the Member (L. & J.) for filing appeal with the application for condonation of delay. On 7.10.2004, the Jurisdictional Commissioner filed the appeal along with the application for condonation of delay. From these facts, it is very clear that due to certain developments, the Commissioner was directed into filing the appeal and the application for condonation of appeal by the Board. Under these circumstances, the delay in filing the appeal has occurred. As already stated, the very fact that the Commissioner had discharged his statutory duty under Section 35B (2) on 22.10.2002 implies that he has become functus officio and was disabled in filing further appeal against the Order-in-Appeal dated 30.8.2002, not to speak up the application for condonation of delay. Before parting, I would like to reproduce the observations of the Tribunal in the case of CCE, Chandigarh-I v. Vishwanath Iron & Steel Rolling Mills, reported in 2002 (150) E.L.T. 307 (Tri. - Del.) as follows :-
"8. The present appeals are filed under Section 35B of the Central Excise Act. On going through the provisions of Section 35B, we do not find any provision which empowers the Chief Commissioner to review an order passed by the Commissioner (Appeals) and to direct him to file an appeal before the Tribunal. May be as a direction from a Superior Officer, Commissioner is bound by such direction but we are to observe that in giving such direction the Chief Commissioner is not enjoying any statutory authority under Section 35B. He has not been given any such power as has been granted to the Board under Section 35E of the Central Excise Act, 1944. Therefore, it cannot be taken that delay was statutory provision. Apart from the above even if such proceedings were being processed in accordance with statutory provision, we find that there is no justification for the long delay which had caused in these cases."
6. In view of the above observations, the COD application is rejected and as a result, the appeal is rejected.