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TMI Blog2014 (5) TMI 719X X X X Extracts X X X X X X X X Extracts X X X X ..... For the purpose of these appeals, we are prepared to accept the contention of the counsel for the appellant that the Committee while doing so did not perform any judicial function and therefore, being merely an administrative action, was open to review without any limitation of res judicata. Even then the question arises whether, such a decision can be reviewed at any time without any reference to the period. The answer has to be clearly in the negative. The Committee which took the decision after due deliberation and examination of facts that in its opinion the decision of the Appellate Commissioner was not required to be challenged, could have on better facts or correct law being brought to its notice, within reasonable time thereafter, recalled its decision and instead directed the authorised officer to file appeal before the Tribunal. However, such liberty cannot be had at any point of time after inordinate delay. - Decided against Revenue. - Tax Appeal No. 160 of 2009 with T.A. No. 318 of 2009 - - - Dated:- 5-7-2012 - Akil Kureshi and Harsha Devani, JJ. Shri R.J. Oza, for the Appellant. Shri Anand Nainawati with Ms. Madhu Jain, for the Respondent. JUDGMENT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8-6-2006 taken a decision not to file appeal. However, subsequently the same Committee on 20-8-2008 decided to file appeal and authorised an officer in this behalf to present such appeal before the Tribunal. Obviously, since such appeal was belated, the department also filed delay condonation application explaining such delay. Such delay condonation application however, came to be dismissed by the Tribunal by an order dated 12-9-2008 which is challenged in Tax Appeal No. 160/2009. Similar but a separate order rejecting delay application in another proceeding came to be passed by the Tribunal [2009 (238) E.L.T. 133 (Tri. - Ahmd.)] which has given rise to Tax Appeal No. 318/2009. 7. The Tribunal was of the opinion that it was only when the Commissioner (Appeals) allowed the refund in favour of the assessee that the appeals came to be filed. According to the Tribunal, this reflected upon the intention of the Revenue to deny the assessee consequent relief of refund and the present proceedings were carried only with an intention to undo the effect of the earlier order. The Tribunal was of the opinion that delay was not properly explained. The Tribunal also opined that the Committee c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not explained. There was no cause much-less sufficient cause for filing the appeal beyond the period of limitation. He pointed out that Section 35B of the Central Excise Act ( the Act for short) provides for a limitation of 90 days for filing the appeal from the date of receipt of copy of the impugned order. He submitted that though the Tribunal referred to delay of 440 days, in the present case, apparently the delay was of over two years. 9.2 From the documents presented before the Tribunal in the form of paper book by the respondent, counsel pointed out that while challenging the order of the Commissioner (Appeals) dated 30-3-2007, the department had taken note of and relied heavily on the decision of the Apex Court in case of Hindustan Safety Glass Works Ltd. (supra). Thus at any rate the Committee was aware about such a decision in March, 2007, despite which the present appeal came to be filed only in August, 2008. Such further delay at any rate, cannot be accepted. 10. Having thus heard learned counsel for the parties, we may peruse the facts on record more closely. Since it was pointed out to us that the duty involved is substantial, we had by our order dated 10-3-201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ections after the expiry of the relevant period referred to in sub-section (3) or sub-section (4), if it is satisfied that there was sufficient cause for not presenting it within that period. Sub-section (2) of Section 35B envisages a Committee of Commissioners of Central Excise who if it is of the opinion that an order passed by the Appellate Commissioner or Commissioner (Appeals) as the case may be is not legal or proper, may direct the Central Excise Officer authorised by the Committee to file appeal to the Appellate Tribunal. In case, the Committee of Commissioners differs in its opinion, it has to state point or points on which it differs and make a reference to the jurisdictional Chief Commissioner of Central Excise who shall after considering the facts of the order, shall take a decision in this regard. 12. It can thus be seen that the decision that the department may take to appeal or not to appeal against the order of the Appellate Authority, is statutorily governed by sub-section (2) of Section 35B of the Act. In order to bring uniformity and consistency to protect the interest of the Revenue on one hand and at the same time to safeguard against any arbitra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eals) order is correct and acceptable on which the Committee put following endorsement We may accept the OIA on 8-6-2006 The matter rested there and according to the opinion of the Committee no appeal was filed before the Tribunal. For over two years thereafter, the department took no further steps. On 1-8-2008, senior departmental representative one Dr. Manojkumar Rajak wrote a letter to the Commissioner, Central Excise, Surat requesting that the matter be reexamined regarding filing of appeal against the order of Commissioner (Appeals) dated 8-3-2006 in light of the decision of the Apex Court in case of Hindustan Safety Glass Works Ltd. (supra). He was also of the opinion that merely because in earlier case, the department had not filed appeal, would not preclude the department from filing appeal in the present case. Upon receipt of such a letter, office submissions were placed before the Committee on 8-8-2008 in which it was stated as under : Received letter F. No. E/794/2007, dated 1-8-2008 from SDR, CESTAT, Ahmedabad regarding appeal filed in this case before CESTAT. The SDR has sought for some clarifications and also asked to provide cop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irstly, there was no opinion expressed by the Committee on the files. No reasons are stated why the Committee decided to review its previous decision. In fact, the file notings also do not suggest that the earlier decision be reviewed and appeals now be presented. The members of the Committee therefore, at-least from the file notings do not appear to have taken any formal decision that the Committee is of the opinion that the decision of the Commissioner (Appeals) is required to be challenged. 18. Secondly, even otherwise in the facts of the present case, we are clearly of the opinion that it was not open for the Committee to review its decision which was taken long back. In June, 2006, the Committee took a conscious decision not to appeal. For the purpose of these appeals, we are prepared to accept the contention of the counsel for the appellant that the Committee while doing so did not perform any judicial function and therefore, being merely an administrative action, was open to review without any limitation of res judicata. Even then the question arises whether, such a decision can be reviewed at any time without any reference to the period. The answer has to be clearly in t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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