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TMI Blog2014 (5) TMI 539X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 19-4-2005. The said claim was rejected on the ground that he has not complied with the legal requirement. Aggrieved by the said order the assessee preferred an appeal contending that he has satisfied all the conditions of the said Notification to make him eligible for rebate sanction. The appellate authority set aside the Order-in-Original directing the assessee to prefer a claim with the jurisdictional Assistant/Deputy Commissioner of Central Excise. Accordingly he preferred and processed the claim for sanction in accordance with law. Against the said order, the assessee preferred an appeal to the Tribunal. The Tribunal allowed the appeal by remanding the matter back to the Commissioner (Appeals) for a de novo decision on merits wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g with the memorandum of appeal. In the appeal before the Tribunal the assessee contended that once the Review Committee of Commissioners decided to accept the order the matter ends there. There is no legal provision of law enabling them to sit in judgment over the decision of the Review Committee and therefore the present appeal filed is not maintainable. The Tribunal took note of the judgment of the Tribunal in the case of CC, Tuticorin v. Madura Coats Pvt. Ltd., 2007 (216) E.L.T. 86 (Tri.-Chennai) where at para 21 it is held as under :- "21. On my careful consideration, I am of the opinion that the learned Member (Judicial) has rightly held in his order that once the Review Committee has taken a decision not to file the appeal befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication seeking condonation of delay on that count cannot be entertained as held by Member (Judicial) and I agree with the same. The COD application is required to be rejected and so also the appeal. The matter should be placed before the original bench for passing final order. Registry Bangalore to return the file to the Registry Chennai to place the matter before Original Bench for passing the final order." Following the aforesaid judgment the Tribunal held that the second review is not possible and therefore it dismissed the appeal. Aggrieved by the said order the Revenue is in appeal. 2. The learned counsel appearing for the Revenue assailing the impugned order contends that there is no prohibition in law for the members of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollector of Central Excise (Appeals) under Section 85, direct the Central Excise Officer to Appeal to the Appellate Tribunal against the order. (3) Every appeal under sub-section (1) or sub-section (2) shall be filed within three months of the date on which the order sought to be appealed against is received by the assessee, the Board or by the Collector of Central Excise, as the case may be. (4) The Central Excise Officer or the assessee, as the case may be, on receipt of a notice that an appeal against the order of the Collector of Central Excise or the Collector of Central Excise (Appeals) has been preferred under sub-section (1) or sub-section (2) by the other party may, notwithstanding that he may not have appealed against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of Central Excise (Appeals) under Section 85 can direct any Central Excise Officer to prefer an appeal on its behalf to the Appellate Tribunal against the order. Therefore an appeal lies against the Commissioner of Central Excise passed under Section 85 only in the event of the Committee of Commissioners objecting to the correctness of the said order. If there is no objection from any of the members if they accept the said order as correct, the question of preferring an appeal against the said order passed under Section 85 by the Commissioner of Central Excise would not arise. It is only when they object, where the said decision to object is unanimous or there is difference of opinion among the Commissioners to constitute the Committee, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re again the jurisdictional Chief Commissioner cannot act mechanically and prefer an appeal. He has to apply his mind, take an independent decision and only if he is satisfied that a case for appeal is made out then only an appeal could be filed. In the scheme of the things the Legislature has not provided any provision for reviewing the decision once taken by the Committee of Commissioners or the Chief Commissioner. It is settled law that the power of review cannot be implied. It is the power which should be expressly provided under the Statute. Merely because there is no prohibition under the Act for any authority to exercise the power of review, the authority would not get jurisdiction to review its own orders. It is only if such an expr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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