COMMISSIONER OF SERVICE TAX Vs. LUMAX SAMLIP INDUSTRIES

JUDGEMENT

(1.) THIS application filed by the Department (appellant) is for condonation of the delay of the appeal, which is against Order -in -Appeal Nos. 8 and 9/05 dated 28.3.05 passed by the Commissioner of Central Excise (Appeals), Chennai. The impugned order was received by the Commissioner of Service Tax Chennai (appellant) on 20.4.2005 and the appeal was filed on 29.5.06. The relevant events which took place during the interregnum between these two dates have been presented by the appellant in the form of a time chart, which reads as under:

(2.) LD . Counsel for the respondents opposes the above prayer on the strength of Final Order No. 407/06 dated 9.5.2006 passed by this Bench in appeal No. S/44/2006 (CCE, Madurai v. Ramalinga Mills Ltd.), wherein the appeal was dismissed as time -barred based on a finding that there was no explanation of delay of the appeal. In the cited case also, the Department had pleaded that the decision to file appeal against the impugned order had been taken on the basis of advice of the Chief Commissioner concerned.

(3.) AFTER considering the submissions, we find that the impugned order was duly accepted by the appellant -Commissioner on 10.6.05 after completing the process of review. It appears that, after nearly one year, the Commissioner decided to file appeal against the impugned order. This decision taken on 19.5.06 is in the nature of review of the review already done by the Commissioner on 10.6.05. The Finance Act, 1994 did not provide for this kind of review. Once the order of the appellate Commissioner is accepted by the Commissioner concerned in accordance with provisions of review under Section 86 of the Finance Act, 1994, it is an acceptance for ever until that decision is disturbed by a competent court of law in a proceeding initiated by the Department. The decision taken by the appellant -Commissioner on 10.6.05 for accepting the appellate Commissioner's order was not so disturbed and the same became final and binding on the department. Hence, for the present appeal, there is no cause of action. Even otherwise, the plea raised by the appellants that the Chief Commissioner's letter advising his Commissioners to keep similar issues open was received only on 18.4.2006 and therefore there was no occasion for filing appeal against the impugned order earlier cannot be of any aid to the Department in the present application. There was no issue surviving when the Chief Commissioner's letter was received by the appellant inasmuch as the impugned order had already been accepted and such acceptance had become final and binding on the Department. Hence there was no question of keeping any issue open by filing appeal.