TaxTMI 
TaxTMI 
TaxTMI 
2014 (5) TMI 719
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....case the Tribunal has committed substantial error of law in rejecting application for condonation of delay and consequently dismissing appeal of the appellant?" 5. Respondent-assessee is engaged in manufacturing safety glasses. It is exigible to excise duty and also pays such duty regularly. There have been long standing disputes between the assessee and the department with respect to inclusion of secondary packing charges in the assessable value of such product. Previously, when the Adjudicating Authority raised such demands and framed the assessment, the respondent approached the Appellate Commissioner. The Appellate Commissioner by his order dated 28-5-1997 ruled in favour of the respondents. Such decision was carried in appeal before the Tribunal. The Tribunal by its order dated 4-10-2002 confirmed the order of the CIT (Appeals). These decisions gave rise to refund claims. Such claims were allowed by the Commissioner (Appeals) by order dated 30-3-2007. Against such order department preferred appeal before the Tribunal which came to be dismissed. Against which we are informed this Court also dismissed Tax Appeal No. 1569/2010 on 7-4-2011. 6. For different periods the....
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....hich we had permitted the counsel to place on record before us, he submitted that there was sufficient justification for the Committee to change its previous decision. The delay was caused on this count which stood properly explained. The Tribunal therefore, erred in rejecting such delay condonation application. Counsel relied on the decision of the Apex Court in case of Collector, Land Acquisition Anantnag and Another v. MST. Katji and Others reported in 1987 (28) E.L.T. 185 (S.C.), to contend that delay should normally be liberally condoned particularly when the cause of substantial justice is pitted against technicalities. Counsel also relied on the decision of the Apex Court in case of Bhag Singh and Others v. Major Daljit Singh and Others reported in 1987 (32) E.L.T. 258 (S.C.), for the same purpose. 9. On the other hand learned counsel Shri Anand Nainawati for the respondent opposed the appeals. He submitted that the Committee previously had taken a conscious decision not to challenge the decision of the Appellate Commissioner. Having once taken such a decision, it was not open for the Committee to revive or review its own decision. In this respect, counsel relied on d....
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....peal by the department is to be presented before the Tribunal and reads 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 (hereafter in this Chapter referred to as the authorised officer) to appeal on his behalf to the Appellate Tribunal against such order. Provided that where the Committee of Commissioners of Central Excise differs in its opinion regarding the appeal against the order of the Commissioner (Appeals), it shall state the 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, if is of the opinion that the order passed by the Commissioner (Appeals) is not legal or proper, direct any Central Excise Officer to appeal to the Appellate Tribunal against such order." * Sub-section (3) of Section 35B provides for pe....
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....inciples of res judicata. If we revert back to the facts on record, the department in order to explain delay in the application that it filed before the Tribunal primarily, stated that the office received the impugned order in appeal on 10-3-2006. At the material time the Committee of Commissioners had decided that such order is acceptable. Such decision was taken on 8-6-2006. This was on the basis that the Mumbai Tribunal had decided a similar issue in favour of the assessee relying on two decisions of the Supreme Court. Later on the decision of the Apex Court in case of Hindustan Safety Glass Works Ltd. (supra) was rendered which the Committee had failed to notice. Such decision was brought to the notice of the Committee later. On these grounds, delay condonation was sought. 14. As already noted, the Tribunal was not impressed by such explanation and rejected the application inter alia on the ground that the intention of the department was not bona fide, in any case, the Committee could not have reviewed its own previous decision. 15. If we peruse the file notings leading to two decisions of the Committee, it emerges that the order of the Appellate Commissioner dated ....
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.... On 14-8-2008, the Joint Commissioner wrote as under : "As ordered (above) Draft appeals to CESTAT Ahmedabad along with application for delay condonation is preferred and placed opp. For perusal and kind approval please." * On 20-8-2008 the Superintendent put following noting which Joint Commissioner approved. "As approved, authorisation letter is placed for signature by Committee. Also letter to SDR is put up for sign." * At the bottom of such approval, we find signatures of two Commissioners who formed the Committee at the relevant time. They signed the document on 20-8-2008 itself, upon which authorisation letter was issued on the same date duly signed by both the Commissioners. 16. To our mind, there is no explanation for long delay of over two years in filing the appeals before the Tribunal. Though the department has computed the delay of nearly more than 440 days, it is apparent that actual delay exceeds over two years. We may recall that the Appellate Commissioner passed his order on 8-3-2006. Same was received by the department shortly thereafter, and also placed before the ....