Customs, Excise and Gold Tribunal - Tamil Nadu
Commissioner Of Customs vs Rpg Telecom Ltd. on 14 August, 2000
Equivalent citations: 2000(122)ELT779(TRI-CHENNAI)
ORDER S.L. Peeran, Member (J)
1. By this application, Revenue seeks for condoning the delay of 94 days in filing the appeal occurred because the department had to await publication of judgment of the Apex Court rendered in the case of Solar Pesticides Pvt. Ltd. This is the only reason given while seeking condonation of delay in the matter.
2. The same is contested by the Id. Advocate for respondents on the ground that the order passed by the Commissioner (Appeals) was on 28.09.1999 and the Commissioner has in the C.A.3 form not indicated the date of communication. The same has been communicated within a reasonable period of 86 days and the delay is far more than 94 days. It is his submission that the order-in-appeal had been accepted by the department and the advantage of the order was also given by means of grant of refund and the refund has been accepted by the assessee in the matter. Therefore in a case where the order of the Commissioner was accepted by the department, same cannot be reversed by virtue of subsequent judgment of the Apex Court, and the reason given for condoning the delay is not sufficient in the matter. He also cites the judgment of the Larger Bench of the Tribunal rendered in the case of Collector v. Universal Car-borandnm Ltd, where the subsequent changed opinion by the department to file the appeal has not been accepted as reported in 1990 (47) E.L.T. 61 (T). He also cites the judgment of Apex Court rendered in U.O.I, v. Tata Yodogawa reported in 1988 (38) E.L.T. 739 for seeking dismissal of appeal in terms of these ratios.
3. Ld. DR seeks for condoning the delay as the issue has been decided in Revenue's favour and the effect of the judgment is required to be given to.
4. On careful consideration of the submissions, we find lot of merit in the submission made by Id. Counsel. The order passed by Commissioner (Appeals) is accepted by the department and the appellants had been granted refund also. After a lapse of time the Apex Court's judgment was pronounced and therefore they have decided to appeal. This cannot be a ground for filing the appeal and the same has been held to be not sufficient. Once the order of the Adjudicating Authority has been accepted, subsequent review to file the appeal has not been accepted as a sufficient reason for condoning the delay in terms of the judgment. In the present case, the Revenue could have filed an appeal before the Apex Court against the ratio held in Tata Yodogawa case. Same was not done. Therefore, there is enormous delay in the matter and same cannot be condoned. Hence this application is rejected and as a consequence the appeal is also rejected.