9911796707
TMI Blog2008 (2) TMI 430X X X X Extracts X X X X X X X X Extracts X X X X ..... 06 passed by the Commissioner (Appeals), Central Excise, Chandigarh, in Appeal No. 278/CE/CHD/06 dated 30-3-2006. 2. In this appeal, the following substantial questions of law have been raised by learned counsel for the appellant for consideration of this Court : (1) Whether the appeal filed by the Department can be dismissed by the Tribunal without going into the merits of the case. (2) Whether the Commissioner can review its earlier decision accepting the order-in-appeal for not filing appeal before learned CESTAT in terms of section 35B (2) of the Central Excise Act, 1944? (This question has been formulated by counsel for the appellant during the course of arguments). 3. In the present case, the adjudicating Authority vide its order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Central Excise changed his opinion and decided to file the appeal. Along with the appeal, an application for condonation of delay in filing the appeal was also filed. Vide impugned order dated 1-11-2006, the CESTAT, while relying upon its decision in the case of CCE v. ITC Ltd., reported in 2005 (192) E.L.T. 623, has dismissed the application for condonation of delay filed by the revenue, while making the following observations : "We find that in the application for condonation of delay filed by the Revenue, it is admitted that on 12-6-06 the impugned order was accepted by the Commissioner. In this situation, we find that Tribunal in the case of CCE v. ITC Ltd. (supra) held that Commissioner of Central Excise has no power t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3-2006, passed by the Commissioner (Appeals). Even in the court, it has not been disclosed as to on what ground and for which reason the Jurisdictional Commissioner of Central Excise wanted to review its earlier decision of not filing the appeal against the said order. The function of the Jurisdictional Commissioner of Central Excise to take a decision under Section 35B(2) to file or not to file appeal against the order passed by the Commissioner (Appeals) is an important administrative function, which the statute required him to take in each case before expiry of the period of limitation for filing the appeal. He has to take the said decision after considering the merit and demerit/advantage and disadvantage of filing the appeal against th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner of Central Excise has accepted the order in appeal and decided not to file an appeal against the same, subsequently he cannot review its order by changing his mind without giving any valid reasons. The acceptance of the order-in-appeal is not an empty formality. Once the Jurisdictional Commissioner of Central Excise accepts the order-in-appeal in accordance with Section 35B(2) of the Act, in normal circumstances he can't view its decision and decide to file the appeal after the expiry of the period of limitation. In the present case, the appellant has not placed on record any reason for which the Jurisdictional Commissioner wants to review its order and wants to file appeal. Merely because after the expiry of the period of limitat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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