2008 (8) TMI 71 - AT - Central Excise

Review and acceptance of adjudication order by Chief Commissioner instead of forwarding his opinion to CBEC held that the delay in filing the appeal during the intervening period between the communication of the order-in-original to the Commissioner to the Chief Commissioner (which led to the order dated 6-2-2007) and the ultimate decision of the Committee of Chief Commissioners was not deliberate and intentional, and, therefore, the delay in filing the appeal is condoned

Summary

Issues:
Delay in filing appeal to the Tribunal under Section 86 of the Finance Act, 1994.

Analysis:
The case involves the condonation of delay in filing an appeal to the Tribunal under Section 86 of the Finance Act, 1994. Sub-section (3) of Section 86 provides a three-month limitation period for filing an appeal, which is to be reckoned from the date the order is received by the assessee, the Board, or the Commissioner of Central Excise. The appeal in this case was filed after 441 days from the relevant date, leading to the Revenue filing an application for condonation of delay. Sub-section (5) of Section 86 empowers the Tribunal to admit an appeal after the relevant period if there was sufficient cause for the delay. The impugned order-in-original was passed by the Commissioner of Central Excise, and the decision to appeal against it was taken by the Chief Commissioner, leading to a delay in filing the appeal.

The Tribunal noted that prior to May 11, 2007, the decision on whether to appeal against the Commissioner's order was to be taken by the Board. However, in this case, the Chief Commissioner took the decision at his own level, accepting the order-in-original. The Tribunal opined that the Chief Commissioner's decision lacked legal sanctity, and condonation of the resultant delay was warranted. The delay in filing the appeal was deemed not deliberate or intentional, leading to the Tribunal allowing the condonation of delay application.

Regarding the argument that a subsequent decision could not be a ground for reviewing the previous decision, the Tribunal clarified that the decision of the Committee of Chief Commissioners was the first decision by the competent authority, and there was no question of 'reviewing' the earlier decision lacking legal sanctity. The Tribunal concluded that the delay in filing the appeal was not deliberate and intentional, and hence, the condonation of delay application was allowed. The appeal was tagged with other Service Tax Appeal numbers for further proceedings.

In conclusion, the Tribunal considered the circumstances surrounding the delay in filing the appeal, the authority responsible for the decision to appeal, and the legal sanctity of the decisions made. The condonation of delay was granted based on the lack of deliberate intent in the delay and the procedural errors in the decision-making process.