2005 (2) TMI 419 - AT - Central Excise

Application for condonation of delay - Appeal to Appellate Tribunal - Limitation - appeal belatedly after expiry of 667 days - HELD THAT - 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 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 rejected and as a result the appeal is rejected.

Summary

Issues:
1. Delay in filing appeal by Revenue after expiry of 667 days.

Judgment Summary:
1. The Revenue filed an appeal belatedly after 667 days without sufficient grounds for condonation of delay. The Commissioner's application lacked verification and was not supported by the necessary affidavit. Despite directions from the Board, no steps were taken to file the appeal in a timely manner. The Commissioner's COD application was rejected as the issue had already been settled by the Tribunal following the Apex Court judgment. The delay was deemed inexcusable, and the appeal was consequently rejected.

2. The Jurisdictional Commissioner had a statutory duty to examine and take action on the Order-in-Appeal within three months of its communication. In this case, the Order-in-Appeal was accepted on 22-10-2002, and the Jurisdictional Commissioner became functus officio. The Board's Circular received later could not reopen the case decided in 2002. The delay in filing the appeal was due to subsequent directions from the Board and not the inaction of the Jurisdictional Commissioner. The COD application was rejected, and the appeal was consequently rejected.

The separate judgment by T.K. Jayaraman concurred with the rejection of the COD application and the appeal based on the above observations and legal provisions.