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TMI Blog2005 (2) TMI 419X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch was also upheld by the Apex Court as reported in 2002 (142) E.L.T. A279 (S.C.). The copy of the Tribunal Final Order No. 1754/2003, dated 18-12-2003 in other assessee's matter was received by the Commissioner on 16-2-2004. On 23-2-2004, they sent a proposal to the Board to file an appeal against this order. On 9-3-2004, the Board called for details. On 24-3-2004, the Commissioner sent a reply to the said Board's letter dated 9-3-2004. On 9-8-2004, a letter dated 9-8-2004 was received from the Board directing the Chief Commissioner to file an appeal against the impugned order. The Chief Commissioner on 26-8-2004 addressed a letter to the Board explaining the reasons for non-filing of appeal against the impugned order. Thereafter, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xpressed in the case of Commissioner of Central Excise, Indore v. J.K. Industries Ltd. [2001 (136) E.L.T. 809 (Tri.-Del.)]. In the case of the Commissioner of Central Excise, Chennai v. Titan Industries Ltd. [2001 (135) E.L.T. 515 (Tri. - Chennai)] the delay of 100 days in one case and 23 days on other case was not condoned as the Department had accepted the order of the Commissioner. Later, the Board changed its view after two months and filed an appeal. In that case, it was stated that the ground is not sufficient cause for condonation of delay. We find in the time chart that the Commissioner is referring to the Board Circular No. 749/65/2003-CX., dated 26-9-2003 directing the field formations to file appeal against the adverse decisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... poses to hold an inquiry into the matter. In this case, when the Commissioner's (Appeals) order was accepted by the Revenue on 22-10-2002, nothing prevented the Board to take steps, but no steps were taken despite the Board Circular No. 749/65/2003-CX., dated 26-9-2003. In terms of the Time Chart, when the Revenue decided to file an appeal against another order of another assessee [Tribunal's Final Order No. 1754/2003, dated 18-12-2003], the steps should have been taken to file appeal in this case, but no steps have been taken. There is no explanation as to why it has delayed at every stage as shown in the time chart. Even if the Chief Commissioner received the Board letter on 9-8-2004, no steps were taken to file appeal, up to 7-10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Appellate [Commissioner of Central Excise] under Section 35, as it stood immediately before the appointed day, or the [Commissioner (Appeals)] under Section 35A, is not legal or proper, direct any Central Excise Officer authorised by him in this behalf (hereinafter in this Chapter referred to as the authorised officer) to appeal on his behalf to the Appellate Tribunal against such order." 5. As per Section 35B(2), the time limit for taking action in the Order-in-Appeal received is within three months from the date of communication of the said Order-in-Appeal. In the instant case, the date of communication in the Order-in-Appeal is 30-8-2002. Therefore, the Jurisdictional Commissioner had to take action on the Order-in-Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from filing an appeal as he had already accepted the Order-in-Appeal. The Board's Circular could not have been used to re-open a case decided on 30-8-2002. The Department sent a proposal for filing Civil appeal against the Final Order of CESTAT dated 18-12-2003 only on account of the Board's Circular dated 26-9-2003. Ultimately, the Board gave direction to the Chief Commissioner, Bangalore to file appeal along with application for condonation of appeal against the Order-in-Appeal dated 30-8-2002 on 9-8-2004. 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 app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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