TMI Blog2007 (2) TMI 517X X X X Extracts X X X X X X X X Extracts X X X X ..... fficio and the Chief Commissioner cannot direct such Committee to revise the view. He has followed the ratio of the Tribunal s ruling rendered in the case of CCE v. ITC, [ 2005 (2) TMI 419 - CESTAT, BANGALORE] wherein it was held that once the order was accepted by the Jurisdictional Commissioner then the said order is binding and subsequent decision by the Board to file an appeal cannot be a ground to condone the delay of 667 days. The Tribunal in the case of ITC Ltd., followed large number of earlier orders including the larger bench judgment rendered in the case of CCE v. Carborandum Universal Ltd., 1990[ 1989 (10) TMI 146 - CEGAT, NEW DELHI] . Learned Member (Technical) has taken a view that there is no mandate in Section 35 of Central Excise Act that once review order has been passed, it cannot be reopened or reviewed. On that premise, he has taken a view that the subsequent review order can be accepted and the delay in filing the appeal can be condoned. Third Member - The facts of the case clearly disclose that the Chief Commissioner was aggrieved with the Review Committee s order and he has prevailed upon the Review Committee to review the position. Learned Member ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oms, Trichy in the same capacity accepted it on 12-8-05. The Commissioner of Customs, Tuticorin was transferred during the interregnum between these two dates. On 24-10-05, the new Commissioner of Customs, Tuticorin examined Audit Files and felt that an appeal should be filed against the appellate Commissioner s order. He consulted his Chief Commissioner and took permission to review the said order. The two Commissioners (Tuticorin and Trichy) met on 25-10-05 and decided to file appeal against the appellate Commissioner s order. According to the time chart, the appeal was filed on 31-10-05. As per the records of the Registry, the appeal was filed on 2-11-05. The affidavit filed in support of this application says that the delay of the appeal was due to the time taken for studying the relevant audit files and for convening the meeting of the Review Committee. 2. Ld. SDR reiterates the above grounds and ld. Counsel for the respondents contests the same. It is submitted that a Review Committee constituted under sub-section (1B) of Section 129A of the Customs Act can review an appellate Commissioner s order only once and that the Committee has no power to change its opinion. In this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of ITC Ltd. (supra), identical issue was discussed in a lucid manner and a cogent view was expressed by the Bench. The appellate Commissioner s order was initially accepted by the jurisdictional Commissioner on 22-10-2002. Subsequently, the Board directed filing of appeal against the said order in view of their Circular dated 26-9-03. Thereafter, there was some correspondence between the jurisdictional Commissioner and the Board. On 9-8-04, the Chief Commissioner received a direction from the Board to file appeal against the said order. In his reply, the Chief Commissioner explained the reasons for not having filed appeal so far against the said order. Thereafter, the appeal was filed on 7-10-04 with a delay of 667 days. The Commissioner s application for condonation of this delay was rejected by the Tribunal after noting that neither the Board nor the Chief Commissioner had any power under Section 35B or any other provision of the Act to direct the jurisdictional Commissioner to file appeal after the latter had accepted the appellate Commissioner s order. It was held that the Commissioner had become functus officio once he had discharged his duty under Section 35B(2) by accept ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cited by the SDR in support of the COD application and the application under consideration are essentially identical as regards the facts and law involved. In the cited case, the Commissioner had accepted the order in appeal in review initially, and later on receipt of advice from the Chief Commissioner, changed his view and filed appeal with a delay of 41 days. The Tribunal decided that the Commissioner could consult anyone in arriving at his satisfaction as to the acceptability or otherwise of the order under review and decide to accept the same or file appeal. As bureaucracy was not prompt, some leniency was warranted in considering the COD applications of Revenue as per the decisions of the Apex Court and High Court of Karnataka cited . Thus the Tribunal condoned the delay of 41 days in that case. 8. In the subject case, owing to the audit objections that were noticed after acceptance of the impugned order in appeal, the committee reviewed the Order in Appeal and decided to file appeal. In doing the review a second time they had sought the clearance of the Chief Commissioner as they were not sure probably whether reviewing a decision accepted earlier was correct procedure. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether the delay was caused despite the diligence of the appellant or due to his/her indifference. In considering the COD application therefore, the revision of a review decision should not be considered as a ground in itself adequate to refuse condonation. It appears more reasonable to consider this as a technical ground and extend a certain amount of latitude to the revenue in the rigour with which this ground is resorted to and applied. It should not be a norm to be mechanically applied in such cases if the appeal is filed with utmost diligence, and consultations with the superiors in the department or experts on a technical subject entailed delay, unless there is a long delay for other reasons and not explained. 13. For the review to be meaningful, the same has to be done in time to be able to file an appeal, if called for. Otherwise there should be sufficient cause to condone the delay in filing appeal. Here the delay has occurred despite the diligence of the concerned officers and therefore the fact that the committee initially accepted the impugned order should not be held against the Revenue. 14. In support of the Revenue s application, the learned SDR made the followi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roval, observations contained in Brij Indar Singh v. Kanshi Ram [ILR 1918 (45) Cal 4 (PC)] that true guide for a court to exercise the discretion under Section 5 (of the Limitation Act.) was whether the appellant had acted with reasonable diligence in prosecuting the appeal. (c) In State of Haryana v. Chandra Mani [2002 (143) E.L.T. 249 (S.C.)] In this judgment the Apex Court cited with approval, the observation of the same Court in Sakuntala Devi Jain v. Kunthal Kumari [1969 (1) SCR 1006] to the effect that unless want of bona fides of such inaction or negligence as would deprive a party of the protection of Section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned. Court had relied also on Smt. Prabha v. Ram Parkash Kalra reported in 1987 Supp SCC (338). In that case, the Apex Court had held that the Court should not adopt an injustice oriented approach in rejecting the application for condonation of delay. Where no gross negligence or deliberate inaction or lack of bona fides was imputable to the party seeking condonation of delay, delay should be condoned in the interest of justice. The above decisions of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the Members of the Review Committee to reconsider their decision. The Members of the Review Committee again met and decided to file an appeal before the Tribunal. 18. The Member (Judicial) in his order has clearly noted that once the Committee of Review decided not to file an appeal before CEGAT, they have become functus officio and the Chief Commissioner cannot direct such Committee to revise the view. He has followed the ratio of the Tribunal s ruling rendered in the case of CCE v. ITC, 2005 (192) E.L.T. 623 (Tri-Bang) wherein it was held that once the order was accepted by the Jurisdictional Commissioner then the said order is binding and subsequent decision by the Board to file an appeal cannot be a ground to condone the delay of 667 days. The Tribunal in the case of ITC Ltd., followed large number of earlier orders including the larger bench judgment rendered in the case of CCE v. Carborandum Universal Ltd., 1990 (47) E.L.T. 61. 19. Learned Member (Technical) has taken a view that there is no mandate in Section 35 of Central Excise Act that once review order has been passed, it cannot be reopened or reviewed. On that premise, he has taken a view that the subsequent revi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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