9911796707
TMI Blog2007 (7) TMI 584X X X X Extracts X X X X X X X X Extracts X X X X ..... Order issued under section 86(2A) of the Finance Act, 1994 for filing appeal against Order-in-Appeal Nos. 8 and 9 of 2005 dated March 28, 2005 by the Commissioner to the Assistant Commissioner of Service Tax, Division II May 19, 2006 Date of filing of appeal against Order-in-Appeal Nos. 8 and 9 of 2005 dated March 28, 2005 before CESTAT by the Assistant Commissioner of Service Tax, Division II May 29, 2006 The present application states that an issue similar to the one involved in the present appeal was pending before the honourable Supreme Court as well as the High Court of Bombay, which fact was not known to the Commissioner when he accepted the impugned order on June 10, 2005. The said fact was available to him only on April 18, 2006 from a letter of the Chief Commissioner of Central Excise, Chennai, wherein it was advised that the issue be kept open by filing appeals against the relevant orders. It is submitted that it was on this basis that the appellant-Commissioner issued a direction to the Assistant Commissioner on May 19, 2006 for filing appeal against the above Order-in-Appeal dated March 28, 2005. Accordingly the appeal was filed on May 29, 2006. Learned SDR prays ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on also gets dismissed. [Against this decision the department filed an appeal before the High Court] C.M.A. No. 1652 of 2007 and M. P. No. 1 of 2007. T. S. Sivagnanam, SCGSC for the appellant. JUDGTMENT The judgment of the court was delivered by K. RAVIRAJA PANDIAN J.-This appeal is filed under section 35G of the Central Excise Act, 1944 read with section 83 of the Finance Act, 1994 by formulating the following substantial questions of law for consideration: "(i) Whether statutory powers of Commissioner to file appeal against an order in appeal before the Appellate Tribunal under section 86(2A) of the Finance Act, 1994 can be denied for the reason that Commissioner had once accepted the order in appeal? (ii) Whether acceptance of order-in-appeal by the Commissioner becomes final and binding on the department and whether the Commissioner can re-examine the order and file appeal under section 86(2A) of the Finance Act, 1994 before the CESTAT? (iii) Whether the Tribunal is right in rejecting the department's appeal as being one without cause of action, without considering the merits of the matter?" On the face of the question of law so far formulated, we wonder whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated April 18, 2006, the appellant issued direction to the Assistant Commissioner on May 19, 2006 for filing an appeal against the order in Appeal dated March 28, 2005. Accordingly, the appeal was filed on May 29, 2006 with an application for condoning the delay. The said request was seriously opposed by the respondents herein by referring to the decision in CCE, Madurai v. Ramalinga Mills Ltd. After considering the materials placed on record and the arguments advanced by the counsel on either side, the Appellate Tribunal non-suited the appellant for the relief of condonation by taking into consideration the sequence of event stated by the appellant and recording the fact that if the reasoning stated is accepted that would amount to reviewing a decision already reviewed by the Commissioner as early as June 10, 2005. The Finance Act, 1994 contains no provision empowering the Commissioner to do this kind of review, once the order of the Appellate Commissioner was accepted by the Commissioner concerned in accordance with the provision of the review under section 86 of the Finance Act, 1994. Further, the CESTAT also found as a matter of fact, that the decision taken by the Appellate C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l for the petitioner and perused the materials available on record and with reference to the statutory provisions. From the conjoint reading of all sub-clause of section 86, it is clear that if the assessee is aggrieved by the order of the Commissioner passed under section 84, he could file an appeal before the Tribunal. Likewise, if the Board objects to the order of the Commissioner passed under section 84, it may direct the Commissioner to file an appeal under sub-clause (2) of section 86. If the Commissioner of Central Excise objects to the order of the Commissioner of Appeals made under section 85, he may direct the Assistant or Deputy Commissioner, as the case may be, to file an appeal. On taking such decision, the appeal has to be filed within the time stipulated under the subsequent clause of section 86. That time-limit has been fixed only to take a decision whether the order of the Commissioner of Central Excise, which went against the department could be taken on appeal and, if so, on what ground. Here in this case, it has been found that the Commissioner has accepted the order of Commissioner of Appeals on June 10, 2005. Thereupon, the matter has not been precipitated f ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
