COMMISSIONER OF CENTRAL EXCISE, BANGALORE Vs. ITC LTD.

JUDGEMENT

(1.) THE Revenue has filed this appeal belatedly after expiry of 667 days. The Commissioner has not filed any affidavit in support of the application for condonation of delay in filing the appeal. He has also not verified the application 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, Bangalore by following ratio of the Apex Court judgment rendered in the case of Maruti Udyog Ltd. [2002 (141) E.L.T. 3 (S.C.)] and the Tribunal judgment rendered in the case of M/s. Shri Chakra Tyres [1999 (108) E.L.T. 361 (T - L.B.)] which was also upheld by the Apex Court as reported in 2002 (142) E.L.T. A279 (S.C.). The copy of the Tribunal Final Order No. 1754/2003, dated 18 -12 -2003 in other assessees matter was received by the Commissioner on 16 -2 -2004. On 23 -2 -2004, they sent a proposal to the Board to file an appeal against this order. On 9 -3 -2004, the Board called for details. On 24 -3 -2004, the Commissioner sent a reply to the said Boards letter dated 9 -3 -2004. On 9 -8 -2004, a letter dated 9 -8 -2004 was received from the Board directing the Chief Commissioner to file an appeal against the impugned order. The Chief Commissioner on 26 -8 -2004 addressed a letter to the Board explaining the reasons for non -filing of appeal against the impugned order. Thereafter, the Commissioner has decided to file the present appeal along with the application for condonation of delay on 7 -10 -2004. Thus the delay is 667 days.

(2.) WE have heard Smt. Shoba L. Chary, learned JCDR and Shri Anil B. Divan, learned Sr. Advocate. Both the sides argued the matter in support of their contentions.

(3.) ON a careful consideration of the facts and circumstances of the case and on submissions made by both the sides, we notice that no sufficient grounds have been made out by the Commissioner for 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 Chemicals Enterprises [2001 (130) E.L.T. 672 (Tri. - Del.)], the ground of subsequent instruction from the Board to file appeal in the similar matter was also not accepted for granting condonation of delay in filing the appeal. The same view was expressed in the case of Commissioner of Central Excise, Indore v. J.K. Industries Ltd. [2001 (136) E.L.T. 809 (Tri. -Del.)]. In the case of the Commissioner of Central Excise, Chennai v. Titan Industries Ltd. [2001 (135) E.L.T. 515 (Tri. - Chennai)] the delay of 100 days in one case and 23 days on other case was not condoned as the Department had accepted the order of the Commissioner. Later, the Board changed its view after two months and filed an appeal. In that case, it was stated that the ground is not sufficient cause for condonation of delay. We find in the time chart that the Commissioner is referring to the Board Circular No. 749/65/2003 -CX., dated 26 -9 -2003 directing the field formations to file appeal against the adverse decisions of the issue of cum -duty price. Further, the Board withdrew this Circular vide Circular No. 803/36/2004 -CX., dated 27 -12 -2004 as the Apex Court has rejected the Review Petition No. 75/2003 filed by the Revenue in case of Maruti Udyog Ltd. Therefore the issue pertain to cum -duty price has already been settled by the Tribunal following the Apex Court judgment. The Board has recalled their Circular dated 26 -9 -2003 by Circular dated 27 -12 -2004. Therefore the grounds urged in the COD application does not survive 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 Revenues 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 Extracts Ltd. [2002 (144) E.L.T. 6 (S.C.)]. The learned Attorney General submitted that the delay is shocking and the manner in which the file has been dealt with even more disturbing. He has stated before the Apex Court that the Union proposes to hold an inquiry into the matter. In this case, when the Commissioners (Appeals) order was accepted by the Revenue on 22 -10 -2002, nothing prevented the Board to take steps, but no steps were taken despite the Board Circular No. 749/65/2003 -CX., dated 26 -9 -2003. In terms of the Time Chart, when the Revenue decided to file an appeal against another order of another assessee [Tribunals Final Order No. 1754/2003, dated 18 -12 -2003], the steps should have been taken to file appeal in this case, but no steps have been taken. There is no explanation as to why it has delayed at every stage as shown in the time chart. Even if the Chief Commissioner received the Board letter on 9 -8 -2004, no steps were taken to file appeal, up to 7 -10 -2004 and there was no explanation of the delay at every stage in this matter. The Commissioner has merely stated about the issue being kept pending before the Apex Court for filing Review Petition. Further, we find that the Review Petition No. 75 of 2003 filed by the Revenue has already been rejected by the Apex Court in the case of M/s. Maruti Udyog Ltd. in Civil Appeal No. 3783 of 2000. The Board has issued Circular No. 803/36/2004, dated 27 -12 -2004 withdrawing their earlier Circular dated 26 -9 -2003. There 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.