9911796707
TMI Blog2006 (11) TMI 475X X X X Extracts X X X X X X X X Extracts X X X X ..... Committee of Commissioners who disagreed with the views of the other member. 1-2-2006 Date of receipt of Board s circular regarding the action to be taken when the decision of the Committee of Commissioners is not unanimous 13-3-2006 Date on which the Commissioner (Coimbatore) who took regular charge in place of the Commissioner (Trichy) amended the grounds of appeal in view of the above Board s circular. 6-4-2006 The date of approval of the amended grounds of appeal Commissioner (Salem) by the other member of the Committee 6-4-2006 Date of filing appeal 10-4-2006 2. It appears from the Time Chart that on 30-1-2006 the Commissioner (Salem), one of the members of the Review Committee constituted under Section 35B(1B) of the Central Excise Act, reviewed the order of the Commissioner (Appeals) on his own grounds and recommended filing of appeal against the order on such grounds, but the other member viz. the Commissioner (Coimbatore) on 1-2-2006 decided to accept the said order for his own reasons. Thus there was no decision by the Review Committee for filing appeal against the appellate Commissioner s order. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mittee to file appeal against the order. Any appeal could have been filed only if the Review Committee unanimously decided to do so. The Commissioner (Trichy) qua Commissioner (Coimbatore) and member of the Review Committee had accepted the appellate Commissioner s order on 1-2-2006 but, subsequently, in view of the Board s circular, the Commissioner (Coimbatore) decided to file appeal against the said order. According to ld. consultant, this procedure had no legal sanction. In this connection, he submitted that Rule 31 did not enable the Board to issue the above circular. Relying on the Tribunal s decision in Commissioner of Customs, Bangalore v. RPG Telecom Ltd., 2000 (122) E.L.T. 779 (Tri.), he submitted that the subsequent review by Commissioner (Coimbatore) was no reason for condoning the delay of the appeal. 5. We have considered the submissions carefully. The impugned order was received by the appellant on 9-11-2005. The authority for reviewing that order was a Committee of the Commissioner of Central Excise, Coimbatore and the Commissioner of Central Excise, Salem, constituted by the Board under sub-section (1B) of Section 35B of the Central Excise Act vide Notification N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to file appeal against the appellate Commissioner s order was taken on 30-3-2006 by the Commissioner (Coimbatore) and that such decision was in consonance with the decision taken by the Commissioner (Salem) on 30-1-2006. The obvious attempt is to construct a review out of the two Commissioners decisions taken on 30-1-2006 and 30-3-2006 but the same is bound to be futile for the reasons we have already recorded. For such reasons, the decision taken on 30-3-2006 by the Commissioner (Coimbatore) to file appeal cannot be treated as decision of the Review Committee under Section 35B (2). The Time Chart says that, on 6-4-2006, the Commissioner (Coimbatore), in view of the Board s circular, amended the grounds of appeal and the Commissioner (Salem) approved the same. But pleadings to this effect are absent in the COD application. Moreover, the Board s circular did not contain anything to bear on the merits of the appeal. Facts not alleged in the application cannot be taken into account. 6. In the result, there is no decision by the Review Committee in terms of sub-section (2) of Section 35B, to file appeal against the appellate Commissioner s order. 7. The question arises, at this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Central Excise Act, 1944 and sub-section 1(B) of Section 129A and 129D of the Customs Act, 1962, in case of difference of opinion between the members of the Committee. 3. The suggestions of the Chief Commissioners on the matter have been examined and considering the above legal position, Board has decided that when two members take a common view to file an appeal or not to file an appeal, in a particular case there would be no difference of opinion and the same would be followed. However, in a rare case when the two members could take different views i.e., one member takes a view to file an appeal, and the other member opposes it, the decision should be to file an appeal. Parliament did not contemplate any difference of opinion amongst the Commissioners in the Review Committee and hence did not make provision for resolving such differences, nor did the law-makers authorize the Board to make any such provision. Under Rule 31 of the Central Excise Rules, 2002, cited by ld. SDR, the Board has power to issue written instructions providing for any incidental or supplemental matters, consistent with the provisions of the Act and the, Rules. The Rule only authorizes the Board to i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... militates against Section 35B(2)/129A(2) and cannot be given effect to. It also does not alter the fact that there is no decision of the Review Committee in this case to file appeal against the order of the Commissioner (Appeals), Coimbatore. 9. Even if it be assumed that the Board s circular dated 6-2-2006 is valid, it cannot be of any support to the appellant s case made out in the present application inasmuch as the circular has no retrospective effect so as to give effect to the decision of the Commissioner (Salem) dated 30-1-2006 for filing appeal against the appellate Commissioner s order. As regards the decision dated. 30-3-2006 of the Commissioner (Coimbatore) to file appeal against the appellate Commissioner s order, again, it cannot be implemented in terms of the circular inasmuch as there is no decision by the other member of the Committee after 6-2-2006. Assuming, again, that there is valid review of the appellate Commissioner s order after 6-2-2006 for filing appeal, we find that there is no satisfactory explanation of the delay of the appeal beyond 13-3-2006, the date on which the appellant received the Board s circular. The time chart shows that, after the Board s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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