TMI Blog2013 (8) TMI 873X X X X Extracts X X X X X X X X Extracts X X X X ..... nied. - E/262/2012-DB - Final Order No. A/11170/2013-WZB/AHD - Dated:- 27-8-2013 - Shri M.V. Ravindran, Member (J) and H.K. Thakur, Member (T) Shri S.K. Mall, AR, for the Appellant. Shri Vishal Agarwal, Advocate, for the Respondent. ORDER The Misc. Application No. E/MA/ORS/21185/13 has been filed in Appeal No. E/262/2012-DB by the Revenue for reconsidering their condonation of delay application No. E/COD/665/12, in view of Hon ble Gujarat High Court s order dated 20-3-2013 passed in Tax Appeal No. 105 of 2013 [2014 (305) E.L.T. 527 (Guj.)] filed by the Revenue in the High Court against Order No. A/965/WZB/AHD/2012 M/1278/WZB/AHD/2012, dated 2-7-2012 of CESTAT, Ahmedabad. Under the above order dated 2-7-2012 this Bench rejected COD application filed by the Revenue for condoning 128 days delay. Following observations were made by Gujarat High Court while remanding the COD proceedings back to the Tribunal :- We may notice that the Tribunal had permitted the Revenue to file additional statement in support of the delay in condonation application. We have perused such an additional statement filed by the Revenue at Annexure G to the appeal. We are broadly in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty free imported material for production of ship or 6. Thereafter, the fact that the export oriented unit has imported raw material without payment of Customs duty for the manufacture of ship availing exemption provided under Notification No. 52/2003-Cus., dated 31-3-2003. Thus, the EOU has not utilized the duty free imported material for production of ship or for the repairing the ship, but sold the same to other unit showing the reason that they are not having an order for manufacture of ship and by such action has contravened the condition of the said Notification No. 52/2003-Cus., dated 31-3-2003. In the circumstances, the order passed by the Commissioner (Appeals) was re-examined in light of provisions of the aforesaid notification and Foreign Trade Policy. It is to submit that in process of re-examination of the impugned order-in-appeal, the Committee of Commissioners has taken into consideration following additional material in light of the above notification and Foreign Trade Policy applicable to the said EOU. The said additional points of consideration are as under. 3. Sh. S.K. Mall (AR) appearing on behalf of the Revenue submitted that in view of the reasons mention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... objections verified in the prescribed manner against any party of the order appealed against and such memorandum shall be disposed of by the Appellate Tribunal as if it were an appeal presented within the time specified in sub-section (3). (5) The Appellate Tribunal may admit an appeal or permit the filing of a memorandum of cross-objection after the expiry of the relevant period referred to in sub-section (3) or sub-section (4), if it is satisfied that there was sufficient cause for not presenting it within that period. 5.1 It is observed from the facts stated in Paras 5 6 of Misc. Application No. E/MA/Ors/21185/13 filed by Revenue as reproduced in Para 2 above that Committee of Commissioners took a decision on 21/26-9-2011 not to file appeal against O-I-A No. 55/2011(BVR) D. Singh/Commr(A)/Ahd, dated 6-7-2011. After taking a view the same Committee of Commissioners on re-examination of the issue had a change of heart and decided to file an appeal and also filed a condonation of delay application on 11-4-2012. It is not the case of the Revenue that there was any material change after 21/26-9-2011 which was not available with the Committee of Commissioners earlier when the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner was aggrieved with the Review Committee s order and he has prevailed upon the Review Committee to review the position. Learned Member (Technical) in his order in para 10 has held that Section 35B of the Finance Act does not mandate that the review once done cannot be reopened or revised. Section 35B of CE Act does not provide any remedy for reopening the Review Committee s decision. There is no provision in law to enable any other authority to sit over the review committee s decision. It is clear from the record that the Chief Commissioner has played a role in influencing the said Commissioners to recall their order passed as Review Committee Members dropping the matter and to accept the Commissioner (Appeals) impugned order. It is very clear from the record that the Review Committee has been influenced by the Chief Commissioner and the order is not free from bias. There is no provision under Section 35B of the CE Act to reopen or review the Review Committee s order. Therefore, the committee has become functus officio as held by Member (Judicial). I agree with his finding and the case law relied by him. The case law relied by Member (Technical) is clearly distinguishab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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