Judgment:
Satish Kumar Mittal, J.
1. This appeal filed by the revenue under Section 35G of the Central Excise Act, 1944 (hereinafter referred to as the 'the Act') has been directed against the order dated 1.11.2006 passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi (hereinafter referred to as 'the CES-TAT) in Excise Appeal No. 3059 of 2006 arising out of order dated 30.3.2006 passed by the Commissioner (Appeals), Central Excise, Chandigarh, in Appeal No. 278/CE/CHD/06 dated 30.3.2006.
2. In this appeal, the following substantial questions of law have been raised by learned Counsel for the appellant for consideration of this Court.
(1) Whether the appeal filed by the Department can be dismissed by the Tribunal without going into the merits of the case?
(2) Whether the Commissioner can review its earlier decision accepting the order in appeal for not filing appeal before learned CESTAT in terms of Section 35B(2) of the Central Excise Act, 1944? (This question has been formulated by counsel for the appellant during the course of arguments).
3. In the present case, the Adjudicating Authority, vide its order dated 29.11.2005, confirmed the demand of Rs. 2,81,904/-, including education cess recoverable from the assessee under Section 11A of the Act. It was also ordered that the penalty is recoverable under Rule 25 for contravening the provisions of Rule 4, 5, 6, 8, 10, 11 and 12 of the Central Excise Rules, 2002 (hereinafter referred to as 'the Rules'); and interest is recoverable under Section 11B of the Act.
4. Aggrieved against the said order, the assessee filed appeal before the Commissioner (Appeals) Customs & Central Excise Chandigarh, which was allowed on 3.03.2006 and it was held that the assessee was entitled for credit of Rs. 4,31,021/- against the demand of Rs. 2,81,904/-as also pleaded by it in para 4.2 of the reply to show cause notice supplied to the Adjudicating Authority, and the Adjudicating Authority has failed to give any finding on the same. Therefore, in view of the law laid down by the Supreme Court in Apex Steels (P) Ltd. v. CCE 1995 (8) E.L.T. 368, abatement on account of modvat is to be allowed in case the duty is demanded at later stage. Therefore, the demand raised by the revenue was held to be not sustainable and the penalty was also held to be not impdsable. On 12.6.2006, the Jurisdictional Commissioner of Central Excise, in exercise of the power under Section 35B(2) of the Act, while deciding not to file appeal against the said order, accepted the order passed by the Commissioner (Appeals). Subsequently, after a delay of 74 days, the Jurisdictional Commissioner of Central Excise changed his opinion and decided to file the appeal. Along with the appeal, an application for condonation of delay in filing the appeal was also filed. Vide impugned order dated 1.11.2006, the CESTAT, while relying upon its decision in the case of CCE v. ITC Ltd. reported in , has dismissed the application for condonation of delay filed by the revenue, while making the following observations:
We find that in the application for condonation of delay filed by the Revenue, it is admitted that on 12.6.06 the impugned order was accepted by the Commissioner. In this situation, we find that Tribunal in the case of CCE v. ITC Ltd. (supra) held that Commissioner of Central excise has no power to review the order after acceptance. The Tribunal held that once the order in appeal is accepted by the Commissioner after such acceptance, Commissioner become functus officio and was disabled to file appeal against order in appeal. In these circumstances, we find that there is no reason to condone the delay in filing the appeal. The COD application as well as appeal is dismissed.
5. The said order has been challenged by the revenue by this appeal, by raising the aforesaid substantial question of law.
6. We have heard counsel for the appellant and gone through the impugned order as well as the provision of Section 35B(2) of the Act.
7. Learned counsel for the appellant submits that the Jurisdictional Commissioner of Central Excise is to discharge the administrative function under Section 35B(2) of the Act and at any point of time, he is empowered to review its order not to file an appeal against an order. He further submits that in case the impugned order passed by the CESTAT is not set aside, the revenue will suffer an irreparable loss and in that eventuality, large number of units will indulge in illegal activity of getting benefit without following proper procedure laid down under the Rules.
8. With the instant appeal, the appellant has not annexed the application filed by it before the Jurisdictional Commissioner of Central Excise seeking condonation of delay and the reason for reviewing its earlier decision regarding not filing of appeal against the order dated 30.3.2006, passed by the Commissioner (Appeals). Even in the court, it has not been disclosed as to on what ground and for which reason the Jurisdictional Commissioner of Central Excise wanted to review its earlier decision of not filing the appeal against the said order. The function of the jurisdictional Commissioner of Central Excise to take a decision under Section 35B(2) to file or not to file appeal against the order passed by the Commissioner (Appeals) is an important administrative function, which the statute required him to take in each case before expiry of the period of limitation for filing the appeal. He has to take the said decision after considering the merit and demerit/advantage and disadvantage of filing the appeal against the order. It is not a mere formality. Rather a conscious decision is to be taken keeping in view the facts and circumstances of the case. He has been empowered under the statute to take such a decision. In light of these facts, we have examined the controversy and we are of the opinion that the CESTAT has rightly dismissed the appeal of the revenue while holding that in the fact and circumstances of the case, the Jurisdictional Commissioner of Central Excise has no power to review his decision of not filing the appeal against an order, when earlier the said order was accepted and the department decided not to file appeal against the said order.
9. Sub sections (2) and (3) of Section 35B of the Act provide as under:
(2) The Committee of Commissioners of Central Excise may, if it is of opinion that an order passed 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 its behalf to the Appellate Tribunal against such order.
(3) Every appeal under this section shall be filed within three months from the date on which the order sought to be appealed against is communicated to the Commissioner of Central Excise, or, as the case may be, the other party preferring the appeal.
10. Once the Jurisdictional Commissioner of Central Excise has accepted the order in appeal and decided not to file an appeal against the same, subsequently he cannot review its order by Changing his mind without giving any valid reasons. The acceptance of the order-in-appeal is not an empty formality. Once the Jurisdictional Commissioner of Central Excise accepts the order-in-appeal in accordance with Section 35B(2) of the Act, in normal circumstances he can review its decision and decide to file the appeal after the expiry of the period of limitation.
11. In the present case, the appellant has not placed on record any reason for which the Jurisdictional Commissioner wants to review its order and wants to file appeal. Merely because after the expiry of the period of limitation he has changed his mind, itself is no ground to condone the delay in filing the appeal. Such ground, in our opinion, is not sufficient for condoning the delay. Thus, in these facts and circumstances, we are of the opinion that in the present case no substantial question of law is arising from the order of the CESTAT.
Dismissed.