2008 (9) TMI 304 - AT - Central Excise

Tribunal dismisses Revenue appeal for delay; upholds assessable value ruling.

The Tribunal dismissed the Revenue's appeal due to a delay of 440 days, attributing the delay to a conscious decision not to appeal initially. The ... Delay in filing of appeal – condo nation of and admission of appeal - held that it can be reasonably held that the decision to file an appeal against the earlier order of the Commissioner (Appeals) was taken only at the time when the refund was required to be given to the assessee, as a consequence of the earlier order. This leads us to believe that the decision on the part of the Revenue was not a bona fide one and the delay in filing the appeal cannot be held to be a delay on account of any bona fide sufficient cause - once jurisdictional Commissioner accepted order passed by first appellate authority and decided for not filing an appeal against the same, he cannot review his order by changing his mind without giving any valid reasons – Revenue appeal dismissed. Issues Involved:1. Condonation of delay in filing the appeal.2. Inclusion of cost of wooden crates in the assessable value.3. Applicability of the principle of res judicata.4. Power of the subsequent Committee of Commissioners to review the earlier decision.Issue-wise Detailed Analysis:1. Condonation of Delay in Filing the Appeal:The Revenue filed an appeal with a delay of 440 days. The delay was attributed to the initial decision by the Committee of Commissioners to accept the order of the Commissioner (Appeals) and not file an appeal. However, upon a subsequent refund claim by the assessee, the Revenue reviewed and decided to challenge the earlier decision. The Tribunal noted that the delay was substantial and not attributable solely to government procedural delays but was a result of a conscious decision not to appeal initially. The Tribunal referenced various Supreme Court decisions emphasizing that sufficient cause must be shown for condonation of delay and that the decision to delay must be bona fide. The Tribunal found the Revenue's delay lacked bona fide cause and thus did not condone the delay.2. Inclusion of Cost of Wooden Crates in the Assessable Value:The core issue involved the inclusion of the cost of wooden crates used for packing glass sheets in the assessable value. The Commissioner (Appeals) had ruled in favor of the assessee, relying on previous decisions which were not appealed by the Department. The Tribunal noted that the Supreme Court's decision in CCE, Allahabad v. Hindustan Safety Glass Works Ltd., which held that such costs should be included, was available when the initial decision was made, and thus the Revenue had the opportunity to appeal at that time but chose not to.3. Applicability of the Principle of Res Judicata:The Commissioner (Appeals) applied the principle of res judicata, noting that previous decisions on the same issue were in favor of the assessee and had been accepted by the Revenue. The Tribunal upheld this application, indicating that the earlier decisions, which were not contested, had attained finality and should not be reopened.4. Power of the Subsequent Committee of Commissioners to Review the Earlier Decision:The Tribunal examined whether a subsequent Committee of Commissioners could review and overturn the decision of an earlier Committee. Citing various judicial precedents, the Tribunal concluded that once a decision is made by the Committee of Commissioners, it becomes functus officio, meaning it cannot be reviewed or reopened by another Committee. The Tribunal referenced the High Court's decision in CCE v. Apsco Prefabs Pvt. Ltd., which held that a jurisdictional Commissioner could not change his mind without valid reasons after deciding not to appeal. Similarly, the Tribunal cited cases where it was held that subsequent decisions could not be used to justify reopening settled matters.Conclusion:The Tribunal found no merit in the Revenue's request to condone the delay of 440 days and dismissed the application. Consequently, the appeal was also dismissed. The Tribunal emphasized the importance of finality in decisions and the lack of power for subsequent committees to review earlier decisions without valid reasons. The judgment reaffirms the principles of res judicata and the necessity of bona fide causes for condonation of delays in legal proceedings.