2007 (2) TMI 517 - AT - Central Excise

Appeal to Appellate Tribunal - Condonation of delay - Review Committee - Power of the Chief Commissioner to call upon the Committee of Commissioners to take a second look to review - In the second Review there was a difference of opinion between the Commissioners - whether a Commissioner was competent to review his own order of acceptance of an order of the appellate Commissioner - Third member Order - Both the Members of the Review Committee unanimously agreed for not filing an appeal before the Tribunal. The matter rested at that. However, based on the draft audit para, the Chief Commissioner directed the Members of the Review Committee to reconsider their decision. The Members of the Review Committee again met and decided to file an appeal before the Tribunal. HELD THAT - The Member (Judicial) in his order has clearly noted that once the Committee of Review decided not to file an appeal before CEGAT, they have become functus officio and the Chief Commissioner cannot direct such Committee to revise the view. He has followed the ratio of the Tribunal s ruling rendered in the case of CCE v. ITC, 2005 (2) TMI 419 - CESTAT, BANGALORE wherein it was held that once the order was accepted by the Jurisdictional Commissioner then the said order is binding and subsequent decision by the Board to file an appeal cannot be a ground to condone the delay of 667 days. The Tribunal in the case of ITC Ltd., followed large number of earlier orders including the larger bench judgment rendered in the case of CCE v. Carborandum Universal Ltd., 1990 1989 (10) TMI 146 - CEGAT, NEW DELHI . Learned Member (Technical) has taken a view that there is no mandate in Section 35 of Central Excise Act that once review order has been passed, it cannot be reopened or reviewed. On that premise, he has taken a view that the subsequent review order can be accepted and the delay in filing the appeal can be condoned. Third Member - The facts of the case clearly disclose that the Chief Commissioner was aggrieved with the Review Committee s order and he has prevailed upon the Review Committee to review the position. Learned Member (Technical) in his order has held that Section 35B of the Finance Act does not mandate that the review once done cannot be reopened or revised. The Section 35B of CE Act does not provide any remedy for reopening the Review Committee s decision. There is no provision in law to enable any other authority to sit over the review committee s decision. It is clear from the record that the Chief Commissioner has played a role in influencing the said Commissioners to recall their order passed as Review Committee Members dropping the matter and to accept the Commissioner (Appeals) impugned order. It is very clear from the record that the Review committee has been influenced by the Chief Commissioner and the order is not free from bias. There is no provision under Section 35B of the CE Act to reopen or review the Review Committee s order. Therefore, the committee has become functus officio as held by Member (Judicial). I agree with his finding and the case law relied by him. The case law relied by Member (Technical) is clearly distinguishable and not applicable to the facts of the case as held in the CCE v. ITC (supra). The decision once taken by authority not to file an appeal cannot be later reviewed and application 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 files to the Registry Chennai to place the matter before Original Bench for passing the final order. Going by the majority view, we dismiss the appeal along with the delay condonation application.

Issues Involved:
1. Condonation of delay in filing the appeal by the Department.
2. Authority and power of the Review Committee under Section 129A of the Customs Act.
3. Validity of a second review by the Review Committee.
4. Applicability of previous judicial decisions on similar matters.

Issue-wise Detailed Analysis:

1. Condonation of Delay in Filing the Appeal by the Department:
The Department filed an application for condonation of a 30-day delay in filing the appeal. The delay was attributed to the time taken for studying relevant audit files and convening the Review Committee meeting. The Department argued that the delay was due to the procedural requirements and consultations necessary for the appeal decision. The opposing counsel contended that the delay could not be condoned due to a 'change of opinion' by the Review Committee, citing previous Tribunal decisions in similar cases.

2. Authority and Power of the Review Committee Under Section 129A of the Customs Act:
The Review Committee, constituted under sub-section (1B) of Section 129A, initially accepted the appellate Commissioner's order. The question arose whether the Committee could review its earlier decision. The Department argued there was no legal prohibition against a change of opinion by the Review Committee, while the opposing counsel maintained that the Committee had no power to change its opinion once made.

3. Validity of a Second Review by the Review Committee:
The initial acceptance of the appellate Commissioner's order by the Tuticorin and Trichy Commissioners was later reconsidered by the new Tuticorin Commissioner after consulting the Chief Commissioner. This led to a second review and the decision to file an appeal. The Tribunal was divided on whether such a second review was permissible. One member highlighted that the Review Committee became functus officio after its initial decision, while another member argued that the law did not mandate that a review once done could not be reopened or revised.

4. Applicability of Previous Judicial Decisions on Similar Matters:
The Tribunal considered various precedents, including the decisions in CCE v. ITC Ltd., Carborundum Universal Limited, Oswal Overseas Limited, and Kejriwal Bee Care (I) Ltd. The decision in ITC Ltd. was particularly influential, where it was held that the Commissioner became functus officio after accepting the appellate Commissioner's order, and subsequent directions to file an appeal were without jurisdiction. The Tribunal also noted that the Supreme Court left the question of law open in the ITC Ltd. case.

Separate Judgments:
- Majority View (P.G. Chacko and S.L. Peeran):
The majority held that the Review Committee became functus officio after its initial decision and could not review its own acceptance of the appellate Commissioner's order. They followed the decision in ITC Ltd., rejecting the Department's application for condonation of delay and dismissing the appeal.

- Dissenting View (P. Karthikeyan):
The dissenting member argued that Section 35B of the Central Excise Act did not prohibit reopening or revising a review decision. He emphasized the need for a liberal approach in condoning delays, especially when caused by procedural diligence and consultations within the Department. He cited various Supreme Court decisions supporting a justice-oriented approach and condoned the 30-day delay, allowing the appeal to be heard on merits.

Conclusion:
The majority decision dismissed the application for condonation of delay and the appeal, while the dissenting opinion favored condoning the delay and hearing the appeal. The case highlighted the complexities involved in the procedural aspects of departmental reviews and the interpretation of statutory provisions concerning the Review Committee's powers.

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