2008 (2) TMI 430

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....6 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 ....

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....ommissioner 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 2005 (192) E.L.T. 623, 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....

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....-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....