CCE Vs. KARTHIK MILLS AND C. BALAKRISHNAN

JUDGEMENT

(1.) These appeals filed by the Revenue are directed against the Order -in -Appeal No. 115 and 116 (CBE) (GVN) dated 30.5.2002 passed by the Commissioner of Central Excise (Appeal), Trichy by which the Commissioner has allowed the appeal filed by the Respondents (assessees).

(2.) This matter came up for hearing on 30.7.2004 when Shri M. Rajendran, learned Counsel appeared for the appellants and took the plea that the Commissioner has not reviewed the order in Appeal within three months from the dale of receipt of the order in Appeal in terms of Sub -Section (3) of Section 35B and therefore, the appeal is not maintainable. This plea of the Counsel was not opposed by the learned JDR Sri A Jayachandran, who appeared on behalf of the appellant -Revenue and hence the Bench proceeded to decide the matter in favour of the Respondents herein and the order rejected the Revenue appeals was dictated and pronounced in the open Court. Before the order was typed, Sri A Jayachandran, JDR submitted a miscellaneous petition on 13.8*2004 praying for re -hearing of the matter stating that what Section 35B(3) envisages is that "appeal under this Section shall be filed within three months from the date on which the order sought to be appealed against is communicated to the (Commissioner of Central Excise), or as the case may be, the other party preferring the appeal" and that there is no stipulation that the Rieview of the order parsed by the Commissioner (Appeals), should be done by the Commissioner Within a period of three months from the date of receipt of the order of the Commissioner (Appeals). Accordingly, the matter was listed for re -hearing on 17.9:2004 and notice was issued to the parties and the matter was adjourned to 24.9.2004. The matter was again adjourned to 27.9.2004 at the request of the Counsel for the party. The matter was finally heard on 28.9.2004 when bath sides were present.

(3.) On going through Sub -Section (3) of Section 35B, it is seen that the said provision does not stipulate anything about review of the order passed by the Commissioner (Appeals). All that is stated is about filing of appeal within a period of three months. In the present case, the appeal was filed after a delay of four days. On going through the COD applications and on hearing both the sides I condone the short delay of four days in filing the appeals. 3.1. In view of above, the order rejecting the Revenue appeals, is recalled and I proceed to decide the matter afresh on merits based on the evidence on record and the arguments advanced by both the sides. ,