TaxTMI 
TaxTMI 
2013 (8) TMI 873
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....ribunal had permitted the Revenue to file additional statement in support of the delay in condonation application. We have perused such an additional statement filed by the Revenue at Annexure G to the appeal. We are broadly in agreement with the learned counsel for the respondent that the statement itself should not be sufficient to condone the delay. It is, of course, true that the Revenue had pressed in service strong prima facie case and substantial questions of law being involved. These, though would be relevant considerations, cannot form the sole basis for condoning delay in absence of any explanation whatsoever. In that view of the matter, we are inclined to place the proceedings back to the Tribunal for giving one opportunity to the Revenue to file additional affidavit. For such purpose, the impugned order dated 2-7-2012 is set aside. The proceedings shall be revived by the Tribunal. It would be open for the Revenue to file additional affidavit which shall be done latest by 30th April, 2013. The Tribunal may, thereafter, reconsider the entire issue afresh. With the above directions, the appeal is disposed of. The appellant shall pay cost of Rs. 5,000/- to the respond....
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....bove notification and Foreign Trade Policy applicable to the said EOU. The said additional points of consideration are as under." 3. Sh. S.K. Mall (AR) appearing on behalf of the Revenue submitted that in view of the reasons mentioned by Revenue in Misc. Application No. E/MA/Ors/21185/13 filed by the department delay of 178 days be condoned. He relied upon the following case laws :- (a) CCE, Delhi v. Crystal Co. [2009 (242) E.L.T. 148 (Tri.-Del.)] (b) Commissioner of Income Tax, Kolkata-II v. West Bengal Infrastructure Dev. Fin. Corpn. Ltd. [2012 (279) E.L.T. 3 (S.C.) = 2012 (28) S.T.R. 665 (S.C.)]. 4. Sh. Vikas Agarwal, Advocate appearing on behalf of the respondent argued that condonation of delay is not permissible as the COD application has been filed by the Committee of Commissioners by reviewing its own order earlier taken on 21/26-9-2011 when it was decided by the said committee not to file appeal against O-I-A No. 56/2011 (BVR) D. Singh/Commr(A)/ADH, dated 6-7-2011. It was his case that those facts were not available in COD application No. E/COD-665/12 filed by the appellant, and Committee of Commissioner....
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....1. After taking a view the same Committee of Commissioners on re-examination of the issue had a change of heart and decided to file an appeal and also filed a condonation of delay application on 11-4-2012. It is not the case of the Revenue that there was any material change after 21/26-9-2011 which was not available with the Committee of Commissioners earlier when the said O-I-A passed by Commissioner (Appeals) was accepted. Once a decision is taken by a Competent Committee of Commissioners the same committee cannot later say that the same decision taken earlier accepting the O-I-A dated 6-7-2011 was not proper. If such a reasoning for condonation of delay is accepted then there will be no time limit to ask for condonation of delay and Revenue can come with a condonation request at any time with change of heart or a different view taken by CESTAT or any other Higher Court on an issue. This will lead to absurdity and opening of floodgates for more litigations once a Committee of Commissioners has taken a decision to accept an O-I-A passed by Commissioner (Appeals). It is therefore held that the same Committee of Commissioners (whether having the same heads or a change in the names o....
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....ed by the Chief Commissioner and the order is not free from bias. There is no provision under Section 35B of the CE Act to reopen or review the Review Committee's order. Therefore, the committee has become functus officio as held by Member (Judicial). I agree with his finding and the case law relied by him. The case law relied by Member (Technical) is clearly distinguishable and not applicable to the facts of the case as held in the CCE v. ITC (supra). The decision once taken by authority not to file an appeal cannot be later reviewed and application seeking condonation of delay on that count cannot be entertained as held by Member (Judicial) and I agree with the same. The COD application is required to be rejected and so also the appeal. The matter should be placed before the Original Bench for passing final order. Registry Bangalore to return the files to the Registry Chennai to place the matter before Original Bench for passing the final order." 4. In view of the above ratio, we find that an application for condonation of delay does not survive and needs to be dismissed and we do so. Consequently, the stay application and appeal are also dismissed." 5.2 The judgm....