2007 (2) TMI 517 - AT - Central Excise

Tribunal Dismisses Appeal, Upholds Procedural Limits on Review Committee Authority After 30-Day Delay.

COMMISSIONER OF CUSTOMS, TUTICORIN Versus MADURA COATS PVT. LTD.

COMMISSIONER OF CUSTOMS, TUTICORIN Versus MADURA COATS PVT. LTD. - 2007 (216) E.L.T. 86 (Tri. - Chennai) Issues Involved:1. Condonation of delay in filing the appeal by the Department.2. Authority and power of the Review Committee under Section 129A of the Customs Act.3. Validity of a second review by the Review Committee.4. Applicability of previous judicial decisions on similar matters.Issue-wise Detailed Analysis:1. Condonation of Delay in Filing the Appeal by the Department:The Department filed an application for condonation of a 30-day delay in filing the appeal. The delay was attributed to the time taken for studying relevant audit files and convening the Review Committee meeting. The Department argued that the delay was due to the procedural requirements and consultations necessary for the appeal decision. The opposing counsel contended that the delay could not be condoned due to a 'change of opinion' by the Review Committee, citing previous Tribunal decisions in similar cases.2. Authority and Power of the Review Committee Under Section 129A of the Customs Act:The Review Committee, constituted under sub-section (1B) of Section 129A, initially accepted the appellate Commissioner's order. The question arose whether the Committee could review its earlier decision. The Department argued there was no legal prohibition against a change of opinion by the Review Committee, while the opposing counsel maintained that the Committee had no power to change its opinion once made.3. Validity of a Second Review by the Review Committee:The initial acceptance of the appellate Commissioner's order by the Tuticorin and Trichy Commissioners was later reconsidered by the new Tuticorin Commissioner after consulting the Chief Commissioner. This led to a second review and the decision to file an appeal. The Tribunal was divided on whether such a second review was permissible. One member highlighted that the Review Committee became functus officio after its initial decision, while another member argued that the law did not mandate that a review once done could not be reopened or revised.4. Applicability of Previous Judicial Decisions on Similar Matters:The Tribunal considered various precedents, including the decisions in CCE v. ITC Ltd., Carborundum Universal Limited, Oswal Overseas Limited, and Kejriwal Bee Care (I) Ltd. The decision in ITC Ltd. was particularly influential, where it was held that the Commissioner became functus officio after accepting the appellate Commissioner's order, and subsequent directions to file an appeal were without jurisdiction. The Tribunal also noted that the Supreme Court left the question of law open in the ITC Ltd. case.Separate Judgments:- Majority View (P.G. Chacko and S.L. Peeran):The majority held that the Review Committee became functus officio after its initial decision and could not review its own acceptance of the appellate Commissioner's order. They followed the decision in ITC Ltd., rejecting the Department's application for condonation of delay and dismissing the appeal.- Dissenting View (P. Karthikeyan):The dissenting member argued that Section 35B of the Central Excise Act did not prohibit reopening or revising a review decision. He emphasized the need for a liberal approach in condoning delays, especially when caused by procedural diligence and consultations within the Department. He cited various Supreme Court decisions supporting a justice-oriented approach and condoned the 30-day delay, allowing the appeal to be heard on merits.Conclusion:The majority decision dismissed the application for condonation of delay and the appeal, while the dissenting opinion favored condoning the delay and hearing the appeal. The case highlighted the complexities involved in the procedural aspects of departmental reviews and the interpretation of statutory provisions concerning the Review Committee's powers.