TMI Blog2008 (9) TMI 304X X X X Extracts X X X X X X X X Extracts X X X X ..... hana Wadhwa, Member (J)]. - The appeal stands filed by the Revenue on 25-8-2008 against an order passed by Commissioner (Appeals), Central Excise, Surat on 8-3-2006 and received by the Revenue on 10-3-2006, along with an application for condonation of delay of around 440 days. 2. Arguing on the application ld. SDR Dr. M.K. Rajak submits that the impugned order-in-appeal was received in the office on 10-3-2006. At the material time, the Committee of Commissioners looked into the same and decided that the same is in accordance with law and as such, no appeal is required to be filed there against. Accordingly Committee of Commissioners accepted the present order-in-appeal on 8-6-2006 and no appeal was filed thereafter. Drawing our attention to the issue involved, he submits that the same relates to the inclusion of cost of wooden crates used for special/secondary packing in respect of the glass sheets manufactured and cleared by the respondents. Commissioner (Appeals) while holding in favour of the assessee has relied upon the earlier two orders passed by Commissioner (Appeals) which were in favour of the assessee. The appeal filed by the Department against one of such orders was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, with a prayer to condone the delay of 440 days. 5. Ld. DR draws our attention to a recent decision of the Hon'ble Supreme Court in the case of C.K. Gangadharan v. CIT. Cochin [2008 (228) E.L.T. 497 (S.C.)] in support of his contention that non-filing of appeals in similar cases does not bar filing of appeal in other cases. However, we find that the said decision is not applicable to the facts of the instant case inasmuch as the issue required to be considered in the present case is as to whether the delay of 440 days is required to be condone or not. Ld. DR has relied upon the Hon'ble Supreme Court's decision in the case of State of Nagaland v. Lipok Ao [2005 (183) E.L.T. 337 (S.C). Referring to Para 10 of the judgment, ld. DR submits that the Hon'ble Supreme Court has observed that the proof by sufficient cause is a condition precedent for exercise of the extraordinary restriction vested in the Court. What counts is not the length of the delay but the sufficiency of the cause and shortness of the delay is one of the circumstances to be taken into account in using the discretion. In Para 11 of the judgment, it was observed that what constitutes sufficient cause canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d order. As such, by relying upon various decisions, it stands contended before us that once the Committee of Commissioners decides not to appeal any order, there is no power with the subsequent Committee to review the earlier order of the Committee of Commissioners. In any case submits the ld. Advocate, that the subsequent Committee decided to file an appeal against the earlier order of the Commissioner (Appeals), only when he allowed the subsequent refund proceedings in their favour. This reflects upon the intention of the Revenue to deny them the consequent relief by way of refunds and the present proceedings are only with an intention to undo the effect of the earlier order. It is also submitted that even on merits, the Hon'ble Supreme Court's decision in the case of M/s. Hindustan Safety Glass Works Ltd., being strongly relied upon by the Revenue, is not applicable to the facts of their case. 8. After considering the submissions made by both the sides, we find that the present case is not a simple and regular case of condonation of delay in filing the appeal by the Revenue, though we note that the delay is not of a few days but the same is around 440 days. We are aware of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grant refund, as a consequence of the earlier order passed by the Commissioner (Appeals). As such, it can be reasonably held that the decision to file an appeal against the earlier order of the Commissioner (Appeals) was taken only at the time when the refund was required to be given to the assessee, as a consequence of the earlier order. This leads us to believe that the decision on the part of the Revenue was not a bona fide one and the delay in filing the appeal cannot be held to be a delay on account of any bona fide sufficient cause. The Revenue cannot be permitted to adopt such routes to deny the consequent benefit of the orders passed by its own authorities, which had attained finality on account of not having been appealed against. 11. The second issue as to whether the subsequent Committee of Commissioners as empowered to review the decision already taken by the Committee of Commissioners stands decided by umpteen number of decisions. The Hon'ble High Court of P H in the case of CCE v. Apsco Prefabs Pvt. Ltd. [2008 (226) E.L.T. 508 (P H) held that once jurisdictional Commissioner accepted order passed by first appellate authority and decided for not filing an appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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