Rajesh Bindal, J. - (1.) Civil Misc. No. 4897 -CII of 2006. For the reasons stated in the application, the delay of 310 days in refiling the appeal is condoned.
(2.) The Civil Misc. Application is allowed. C.E.A. No. 56 of 2006
(3.) The Revenue has filed the present appeal under Sec. 35G of the Central Excise Act, 1944 (for short 'the Act') claiming that substantial questions of law would emerge out of order dated 3 -8 -2004 passed by the Customs, Excise & Service Tax Appellate Tribunal, New Delhi (for short 'the Tribunal') in Appeal No. E/1988/2004 -NB(SM). The following questions have been framed by the revenue: (i) Whether matter regarding determining of Annual Capacity of Production (ACP) duly determined by an appealable order of Commissioner of Central Excise, but which was not challenged in appeal and had attained finality, could be re -opened in a subsequent proceedings for refund disputing the said order of the Commissioner on the basis of a letter/representation filed five months after the order was passed by the Commissioner, which contains same objections which the Commissioner has already considered/discussed in his order itself? (ii) Whether under the facts and circumstances of the case, the Tribunal has erred in law by setting aside the Order -in -Appeal No. 4/CE/Appl/Jal/2004 dated 28 -1 -2004 of Commissioner (Appeals) remanding back the case to the Adjudicating Authority with the directions for deciding the refund claim of the party after awaiting the order of the Commissioner on representation made by them against the order of determination of Annual Capacity of Production DQ (ACP), when it is evident that Commissioner has no authority in law, to review his own order?;