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Judgment
K. Raviraja Pandian, J.—This appeal is filed u/s 35G of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994 by
formulating the following Substantial Questions of law for consideration.
i) Whether statutory powers of Commissioner to file appeal against an order in appeal before the Appellate Tribunal u/s 86(2A) of the Finance
Act, 1994 can be denied for the reason that Commissioner had once accepted the order in appeal ?
ii) Whether acceptance of Order-in-Appeal by the Commissioner becomes final and binding on the Department and whether the Commissioner
can re-examine the order and file appeal u/s 86(2A) of the Finance Act, 1994 before the CESTAT ?
iii) Whether the Tribunal is right in rejecting the Department''s appeal as being one without cause of action, without considering the merits of the
matter?
On the face of the question of law so far formulated, we wonder whether such questions of law arise in this case for resolution by this Court as
the order passed by the Customs Excise and Service Tax Appellate Tribunal, Chennai Bench, Chennai (hereinafter referred to as "" the CESTAT""),
which is impugned in this appeal is nothing but an order made in an application filed for condoning the delay of 350 days in filing an appeal against
the order in Appeal Nos. 8 and 9 of 2005, dated 28.3.2005 passed by the Commissioner of Central Excise (Appeals), Chennai non-suiting the
appellants for the relief sought for. The reasons stated by the appellant was rejected by the Appellate Tribunal by giving reasons. The reasons are
that the order dated 28.3.2005 made in Appeal Nos. 8 & 9 of 2005 was received by the Commissioner of Service Tax, Chennai on 20.4.2005
and the appeal was filed on 29.5.2006. In those circumstances of the cases, the appellant herein filed an application to condone the delay of 350
days. The reason for the delay according to the appellant is stated as follows:
Date of receipt of Order-in-Appeal
No. 8&9/2005 dt 28.3.2005 20.4.2005
Order-in-appeal No. 8&9/2005
dt 28.3.2005 accepted by the Commissioner 10.6.2005
Date of receipt of Chief Commissioner''s
(letter C. No. IV/ 16.238/2005-CZO dt 17.4.2006)
direction to file appeal before CESTAT 18.4.2006
Order issued u/s 86(2A) of the
Finance Act, 1994 for filing appeal against
OIA No. 8&9 dt 28.3.2005 by the Commissioner
to the Assistant Commissioner of Service Tax,
Division-II 19.5.2006
Date of filing of appeal against OIA No. 8&9
dt 28.3.2005 before CESTAT by the Assistant
Commissioner of Service Tax, Division-II 29.5.2006
The reasons for delayed filing of the appeal was explained by saying that the issue similar to the one involved in the present appeal was pending
before the Supreme Court as well as the High Court of Mumbai, which fact was not known to the Commissioner when the Commissioner
accepted the impugned order on 10.6.2005. The said fact was made known only on 18.4.2006 from the letter of Chief Commissioner, Chennai
with an advise to the Commissioner to keep the issue pending by filing an appeal against their relevant order. It is also submitted before the
CESTAT, that only on the basis of the letter of the Chief Commissioner dated 18.4.2006, the appellant issued direction to the Assistant
Commissioner on 19.5.2006 for filing an appeal against the order in Appeal dated 28.3.2005. Accordingly, the appeal was filed on 29.5.2006
with an application for condoning the delay. The said request was seriously opposed by the respondents herein by referring to the decision in CCE,
Madurai v. Ramalinga Mills Ltd.
After considering the materials placed on record and the arguments advanced by the counsel on either side, the Appellate Tribunal non-suited
the appellant for the relief of condonation by taking into consideration of the sequence of event stated by the appellant and recording the fact that if
the reasoning stated is accepted that would amount to reviewing a decision already reviewed by the Commissioner as early as 10.6.2005. The
Finance Act, 1994 contains no provision empowering the Commissioner to do this kind of review, once the order of the Appellate Commissioner
was accepted by the Commissioner concerned in accordance with the provision of the review u/s 86 of the Finance Act, 1994. Further, the
CESTAT also found as a matter of fact, the decision taken by the Appellate Commissioner on 19.5.2006 for accepting the Appellate
Commissioner''s order was not disturbed and the same has become final in that case. When the Chief Commissioner''s order requiring the
Commissioner has to file an appeal was received by the Commissioner, there was no issue pending for adjudication as it has been already
accepted in the order made in Appeal Nos. 8 & 9 of 2005 by the Commissioner and a quietus was given. For the reasonings stated above, the
tribunal non-suited the appellant.
Mr. T.S.Sivaganam, learned standing counsel appearing for the respondents very strenuously contended that there is no provision whatsoever
u/s 86 of the Finance Act to the effect that the Commissioner has to accept the order passed by the Commissioner of Central Excise (Appeals)
and once it is accepted that could not be reviewed for any purpose particularly for the purpose of filing appeal. To impress upon this point, he
referred to the provision u/s 86 of the Finance Act, which provides for appeal, which reads as follows:
Section 86. Appeals to Appellate Tribunal- (1) Any assessee aggrieved by an order passed by a [Commissioner] of Central Excise u/s 84, or an
order passed by a [Commissioner] of Central Excise (Appeals) u/s 85, may appeal to the Appellate Tribunal against such order.
[(2) The Board may, if it objects to any order passed by the Commissioner of Central Excise u/s 84, direct the Commissioner of Central Excise to
appeal to the Appellate Tribunal against the order.
(2A) The Commissioner of Central Excise may, if he objects to any order passed by the Commissioner of Central Excise (Appeals) u/s 85, direct
the Assistant Commissioner of Central Excise or, as the case may be, Deputy Commissioner of Central Excise to appeal to the Appellate Tribunal
against the order.]
(3) Every appeal under Sub-section (1) [or Sub-section (2) or Sub-section (2A)] shall be filed within three months of the date on which the order
sought to be appealed against is received by the assessee, the Board or by the [Commissioner] of Central Excise, as the case may be.
Hence, it is contended by Mr. T.S. Sivagnanam that the order has to be set aside as it has given a finding that there is no cause of action for the
Commissioner to agitate the matter. he appeal is correct or not.
We heard the learned Counsel for the petitioner and perused the materials available on record and with reference to the statutory provisions.
From the conjoint reading of all sub-clause of Section 86, it is clear that if the assessee is aggrieved by the Commissioner passed u/s 84, he
could file an appeal before the Tribunal. Likewise, if the Board objects to the order of the Commissioner passed u/s 84, it may direct the
Commissioner to file an appeal under Sub-clause 2 of Section 86. If the Commissioner of Central Excise objects to the order of the Commissioner
of Appeals made u/s 85, he may direct the Assistant or Deputy Commissioner, as the case may be, to file an appeal. On taking such decision, the
appeal has to be filed within the time stipulated under the subsequent clause of Section 86. That time limit has been fixed only to take a decision
whether the order of Commissioner of Central Excise, which went against the department could be taken on appeal and if so on what ground.
Here in this case, it has been found that the Commissioner has accepted the order of Commissioner of Appeals on 10.6.2005. Thereupon, the
matter has not been precipitated further. That shows a quietus has been given to the issue by accepting the order of the Commissioner of Central
Excise (Appeals). Thereupon, as found from the reasons stated by the appellant herein in their application for condoning the delay, the matter has
been once again reconsidered as per the letter of the Chief Commissioner dated 17.4.2006 on the sole ground that the connected issue is pending
before the Supreme Court and in the High Court of Mumbai. The time limit fixed for filing an appeal is in order to give a finality to the proceedings.
If an appeal has not been filed within the time limit stipulated in the appeal provision, a legal right is accrued to the other side on the ground that
because of non-filing of the appeal, the order passed in favour of other side would have been accepted by the department and reached its finality.
Such accrued legal right cannot be simply brushed aside by filing an application after one year and to condone the delay on the ground that similar
issue is stated to be pending before the Supreme Court. It is also well settled and established legal principle of law that in fiscal statute, every
assessment year or every clearance is a unit by itself and a separate cause of action. For each cause of action, the parties can seek remedy
notwithstanding the decisions rendered on an identical set of facts in the earlier years. Useful reference can be had to the judgment of the Supreme
Court in the case of Bharat Sanchar Nigam Ltd. and Another Vs. Union of India (UOI) and Others, . Hence, we are of the view that an ultimate
decision rendered by the CESTAT cannot be complained of by the petitioner, though certain argument has been made about the observation
contained in the body of the order as unwarranted. We hereby make it clear that the observation made in the body of the order of the CESTAT
need not be taken as a finding rendered on the basis of an adjudicated order.
With this observation, the civil miscellaneous appeal is dismissed. Consequently, connected miscellaneous petition is also dismissed. No costs.