TMI Blog2005 (2) TMI 419X X X X Extracts X X X X X X X X Extracts X X X X ..... the application for condonation of delay. On 7-10-2004, the Jurisdictional Commissioner filed the appeal along with the application for condonation of delay. From these facts, it is very clear that due to certain developments, the Commissioner was directed into filing the appeal and the application for condonation of appeal by the Board. Under these circumstances, the delay in filing the appeal has occurred. As already stated, the very fact that the Commissioner had discharged his statutory duty u/s 35B(2) on 22-10-2002 implies that he has become functus officio and was disabled in filing further appeal against the Order-in-Appeal dated 30-8-2002, not to speak up the application for condonation of delay. Thus, the COD application is reject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 18-12-2003 in other assessee's matter was received by the Commissioner on 16-2-2004. On 23-2-2004, they sent a proposal to the Board to file an appeal against this order. On 9-3-2004, the Board called for details. On 24-3-2004, the Commissioner sent a reply to the said Board's letter dated 9-3-2004. On 9-8-2004, a letter dated 9-8-2004 was received from the Board directing the Chief Commissioner to file an appeal against the impugned order. The Chief Commissioner on 26-8-2004 addressed a letter to the Board explaining the reasons for non-filing of appeal against the impugned order. Thereafter, the Commissioner has decided to file the present appeal along with the application for condonation of delay on 7-10-2004. Thus the delay is 667 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner of Central Excise, Chennai v. Titan Industries Ltd. [2001 (135) E.L.T. 515 (Tri. - Chennai)] the delay of 100 days in one case and 23 days on other case was not condoned as the Department had accepted the order of the Commissioner. Later, the Board changed its view after two months and filed an appeal. In that case, it was stated that the ground is not sufficient cause for condonation of delay. We find in the time chart that the Commissioner is referring to the Board Circular No. 749/65/2003-CX., dated 26-9-2003 directing the field formations to file appeal against the adverse decisions of the issue of cum-duty price. Further, the Board withdrew this Circular vide Circular No. 803/36/2004-CX., dated 27-12-2004 as the Apex Court h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evented the Board to take steps, but no steps were taken despite the Board Circular No. 749/65/2003-CX., dated 26-9-2003. In terms of the Time Chart, when the Revenue decided to file an appeal against another order of another assessee [Tribunal's Final Order No. 1754/2003, dated 18-12-2003], the steps should have been taken to file appeal in this case, but no steps have been taken. There is no explanation as to why it has delayed at every stage as shown in the time chart. Even if the Chief Commissioner received the Board letter on 9-8-2004, no steps were taken to file appeal, up to 7-10-2004 and there was no explanation of the delay at every stage in this matter. The Commissioner has merely stated about the issue being kept pending before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the authorised officer) to appeal on his behalf to the Appellate Tribunal against such order." As per Section 35B(2), the time limit for taking action in the Order-in-Appeal received is within three months from the date of communication of the said Order-in-Appeal. In the instant case, the date of communication in the Order-in-Appeal is 30-8-2002. Therefore, the Jurisdictional Commissioner had to take action on the Order-in-Appeal before 30-11-2002. As seen from the time chart, the Jurisdictional Commissioner has accepted the Order-in-Appeal dated 30-8-2002 on 22-10-2002. The acceptance of the Order-in-Appeal is not an empty formality. Normally the Order-in-Appeal is scrutinised thoroughly before accepting them. In the instant case, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ultimately, the Board gave direction to the Chief Commissioner, Bangalore to file appeal along with application for condonation of appeal against the Order-in-Appeal dated 30-8-2002 on 9-8-2004. Since the Department felt that the grounds for filing an appeal against the Order-in-Appeal dated 30-8-2002 were not strong, there was some correspondence with the Board explaining in detail the reason for non-filing of the appeal against the Order-in-Appeal dated 30-8-2002. The second letter dated 30-9-2004 was received from the Member (L. J.) for filing appeal with the application for condonation of delay. On 7-10-2004, the Jurisdictional Commissioner filed the appeal along with the application for condonation of delay. From these facts, it is ve ..... X X X X Extracts X X X X X X X X Extracts X X X X
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