Satish Kumar Mittal, J. - (1.) THIS appeal filed by the revenue under Section 35G of the Central Excise Act, 1944 (hereinafter referred to as the 'the Act') has been directed against the order dated 1.11.2006 passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi (hereinafter referred to as 'the CES -TAT) in Excise Appeal No. 3059 of 2006 arising out of order dated 30.3.2006 passed by the Commissioner (Appeals), Central Excise, Chandigarh, in Appeal No. 278/CE/CHD/06 dated 30.3.2006.
(2.) IN this appeal, the following substantial questions of law have been raised by learned Counsel for the appellant for consideration of this Court. (1) Whether the appeal filed by the Department can be dismissed by the Tribunal without going into the merits of the case? (2) Whether the Commissioner can review its earlier decision accepting the order in appeal for not filing appeal before learned CESTAT in terms of Section 35B(2) of the Central Excise Act, 1944? (This question has been formulated by counsel for the appellant during the course of arguments). In the present case, the Adjudicating Authority, vide its order dated 29.11.2005, confirmed the demand of Rs. 2,81,904/ -, including education cess recoverable from the assessee under Section 11A of the Act. It was also ordered that the penalty is recoverable under Rule 25 for contravening the provisions of Rule 4, 5, 6, 8, 10, 11 and 12 of the Central Excise Rules, 2002 (hereinafter referred to as 'the Rules'); and interest is recoverable under Section 11B of the Act.
(3.) AGGRIEVED against the said order, the assessee filed appeal before the Commissioner (Appeals) Customs & Central Excise Chandigarh, which was allowed on 3.03.2006 and it was held that the assessee was entitled for credit of Rs. 4,31,021/ - against the demand of Rs. 2,81,904/ -as also pleaded by it in para 4.2 of the reply to show cause notice supplied to the Adjudicating Authority, and the Adjudicating Authority has failed to give any finding on the same. Therefore, in view of the law laid down by the Supreme Court in Apex Steels (P) Ltd. v. CCE, 1995 (8) E.L.T. 368, abatement on account of modvat is to be allowed in case the duty is demanded at later stage. Therefore, the demand raised by the revenue was held to be not sustainable and the penalty was also held to be not imposable . On 12.6.2006, the Jurisdictional Commissioner of Central Excise, in exercise of the power under Section 35B(2) of the Act, while deciding not to file appeal against the said order, accepted the order passed by the Commissioner (Appeals). Subsequently, after a delay of 74 days, the Jurisdictional Commissioner of Central Excise changed his opinion and decided to file the appeal. Along with the appeal, an application for condonation of delay in filing the appeal was also filed. Vide impugned order dated 1.11.2006, the CESTAT, while relying upon its decision in the case of CCE v. , has dismissed the application for condonation of delay filed by the revenue, while making the following observations: We find that in the application for condonation of delay filed by the Revenue, it is admitted that on 12.6.06 the impugned order was accepted by the Commissioner. In this situation, we find that Tribunal in the case of CCE v. ITC Ltd. (supra) held that Commissioner of Central excise has no power to review the order after acceptance. The Tribunal held that once the order in appeal is accepted by the Commissioner after such acceptance, Commissioner become functus officio and was disabled to file appeal against order in appeal. In these circumstances, we find that there is no reason to condone the delay in filing the appeal. The COD application as well as appeal is dismissed.;