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TMI Blog2014 (5) TMI 539X X X X Extracts X X X X X X X X Extracts X X X X ..... power of review. In that view of the matter, once the Committee of Commissioners on a careful examination of the order of the Commissioner of Appeals did not differ in their opinion and decide to accept the said order the matter ends there. The Chief Commissioner is not vested with any power to call upon the Committee of Commissioners to take a second look to review the order so that he could take decision to prefer an appeal. Such a procedure is not contemplated under law. In the nature of proceedings such a power cannot be conferred on the Chief Commissioner also - the Tribunal was justified in holding that the appeal filed on the basis of the second review is not maintainable - Decided against Revenue. - CEA Nos. 107 & 126 of 2009 - - - Dated:- 22-9-2011 - N. Kumar and Ravi Malimath, JJ. Shri Y. Hariprasad, Advocate, for the Appellant. Shri G. Shivadass and Harish R., Advocates, for the Respondent. JUDGMENT The Revenue has preferred these appeals challenging the order passed by the Tribunal [2009 (15) S.T.R. 267 (Tri. - Bang.)] holding that a second Review is not possible and thereby upholding the order passed by the Commissioner. 2. The assessee cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce the Review Committee of Commissioners decided to accept the order the matter ends there. There is no legal provision of law enabling them to sit in judgment over the decision of the Review Committee and therefore the present appeal filed is not maintainable. The Tribunal took note of the judgment of the Tribunal in the case of CC, Tuticorin v. Madura Coats Pvt. Ltd., 2007 (216) E.L.T. 86 (Tri.-Chennai) where at para 21 it is held as under :- 21. On my careful consideration, I am of the opinion that the learned Member (Judicial) has rightly held in his order that once the Review Committee has taken a decision not to file the appeal before CESTAT, then in such circumstances they become functus officio. 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 in para 10 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of law and therefore the appeal is not maintainable. The Tribunal was justified in taking the said view and he submits that no case for interference is made out. In order to appreciate the rival contentions it is necessary to look into Section 86 which deals with the appeals to the Tribunal which reads as under :- 86. Appeals to Appellate Tribunal. - (1) Any assessee aggrieved by an order passed by a Collector of Central Excise under Section 84, or an order passed by a Collector of Central Excise (Appeals) under Section 85, may appeal to the Appellate Tribunal against such order. (2) The Board may, if it objects to any order passed by the Collector of Central Excise under Section 84 or the Collector of Central Excise may, if he objects to any order passed by the Collector of Central Excise (Appeals) under Section 85, direct the Central Excise Officer to Appeal to the Appellate Tribunal against the order. (3) Every appeal under sub-section (1) or sub-section (2) shall be filed within three months of the date on which the order sought to be appealed against is received by the assessee, the Board or by the Collector of Central Excise, as the case may be. (4) The Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not arise. It is only when they object, where the said decision to object is unanimous or there is difference of opinion among the Commissioners to constitute the Committee, then, they shall state the point or points on which they differ and make a reference to the jurisdictional Chief Commissioner, who shall, after considering the facts of the order if he is of the opinion that the order passed by the Commissioner of Central Excise (Appeals) is not legal or proper direct any Central Excise Officer to prefer an appeal to the appellate jurisdiction against the order. Therefore under the scheme of the Act it is clear that even if the Committee of Commissioners differ in their opinion and wants an appeal to be filed and sets points on which they differ the jurisdictional Chief Commissioner to whom the reference is made is not bound to act on such reference. On such reference being considered by him and only if it is of the opinion that the order passed by the Commissioner of Central Excise is not legal or proper he may direct the Central Excise Officer to prefer an appeal. The intention of the Legislature in enacting this provision is manifest. It is to avoid frivolous appeals. When o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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