TaxTMI 
TaxTMI 
2005 (2) TMI 419
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....ication but it has been verified by the Additional Commissioner while the application has been signed by the Commissioner. In terms of the time chart, it is seen that the order passed by the Commissioner (Appeals) in favour of the assessee was accepted by the Commissioner on 22-10-2002. The Board also did not take any step but gave direction to the field formations to keep the matter pending on such cases. However, on 26-9-2003, the Board issued Circular No. 749/65/2003-CX., dated 26-9-2003 in file No. 387/67/99-JC directing the field formations to file an appeal against the adverse decisions on the issue of cum-duty price in future cases. On 18-12-2003, another appeal of the Department against some other assessee was dismissed by CESTAT, B....
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.... condonation of delay in filing the appeal. The order was passed on 30-8-2002 and the same was accepted by the Commissioner. Therefore, in terms of the Larger Bench of Tribunal ruling rendered in the case of Collector of Customs v. Carborandum Universal Ltd. [1990 (47) E.L.T. 61 (Tribunal)], the enormous delay in the present matter cannot be condoned. In the cited case, the order of the Commissioner (Appeals) was accepted and the initial decision was not to contest the order. Subsequently there was a change in the mind to file appeal. However, at that time the statutory period to file an appeal had lapsed. The Contention on this ground was rejected as no sufficient cause. In the case of Commissioner of Central Excise, Indore v. Navin Chemic....
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....ve as the matter pertaining to the assessee herein has attained finality. We also find that the Revenue appeal against the assessee in Civil Appeal No. 4166 of 2000, has also been rejected on the ground that there is no question of law arise in the Revenue's appeal. The Apex Court has referred to the impugned order dated 30-8-2002. There is no matter pending for consideration by the Apex Court or by the Tribunal. It is unfortunate that in the circumstances, the Commissioner should have filed the present application without sufficient cause for condonation of delay. The Apex Court did not accept the belated delay of the Revenue in filing the appeal after a lapse of 839 days in the case of Commissioner of Central Excise, Bangalore v. Agro....
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....here is no sufficient cause shown for condonation of enormous delay in the matter. The laches and negligence are patent on record in the matter. Hence the delay cannot be condoned. The COD application is rejected and as a result, the appeal is also rejected. The operative portion of the order has been pronounced in the open court on conclusion of hearing on 2.2.2005) T.K. Jayaraman, Member (T) 4. While concurring with the decision of the learned Member (Judicial), I have to make certain observations to put the entire issue in proper perspective. In this case, the Order-in-Appeal was issued on 30-8-2002. When the order of the Commissioner (Appeals) is received, the Jurisdictional Commissioner of Central Excise has a statutory duty t....
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....rts within the territorial India. Under these circumstances, the Jurisdictional Commissioner was duty bound to accept the Order-in-Appeal dated 30-8-2002. Once the Jurisdictional Commissioner accepts the Order-in-Appeal in accordance with Section 35B(2), he becomes functus officio. There is no provision in the Central Excise Act to reverse the decision of the Jurisdictional Commissioner. Neither the Board nor the Chief Commissioner has any power under Section 35B or any other section to direct the Jurisdictional Commissioner to file an appeal after he has accepted the Order-in-Appeal under Section 35B(2). Moreover, in this case, the delay in filing the appeal has arisen not on account of any inaction on the part of the Jurisdictional Commis....
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....stances, the delay in filing the appeal has occurred. As already stated, the very fact that the Commissioner had discharged his statutory duty under Section 35B(2) on 22-10-2002 implies that he has become functus officio and was disabled in filing further appeal against the Order-in-Appeal dated 30-8-2002, not to speak up the application for condonation of delay. Before parting, I would like to reproduce the observations of the Tribunal in the case of CCE, Chandigarh-I v. Vishwanath Iron & Steel Rolling Mills, reported in 2002 (150) E.L.T. 307 (Tri. - Del.) as follows :- "8. The present appeals are filed under Section 35B of the Central Excise Act. On going through the provisions of Section 35B, we do not find any provision which e....