ORDER
P. Karthikeyan, Member (T)
1. The subject appeal is filed by the Revenue and is directed against the order of the Commissioner of Central Excise (Appeals), Coimbatore upholding the order of the Assistant Commissioner, Pollachi Division confirming duty demanded and cess on certain quantity of paper manufactured and cleared without payment of duty for captive consumption by the respondents Shree Karthik Papers Ltd. in the years 2000-01 and 2001-2002. In the impugned Order-in-Appeal, the Commissioner (Appeals) vacated the demand of interest ordered by the original authority under Section 11AB(1) of the Central Excise Act, 1944. The appeal has been filed for restoring the Order-in-Original.
2. The appeal is accompanied by a condonation of delay petition as the appeal has been filed with a delay of 85 days. As per Notification No. 25/2005 CE (NT) dated 13.5.2005 as amended by Notification No. 30/2005 CE (NT) dated 8.6.2005, the subject Order-in-Appeal has to be reviewed by a Committee consisting of Commissioners of Coimbatore and Salem Commissionerates. As the regular Commissioner for Coimbatore Commissionerate had been transferred on promotion, the Chief Commissioner of the zone nominated Commissioner, Trichy to exercise the powers of review conferred under Section 35B(2) of Central Excise Act, 1944. Commissioner, Salem was given additional charge of Commissioner, Coimbatore. In the application for condonation of delay, the Revenue has submitted that the Committee of Commissioners did not sit jointly to review the Order-in-Appeal due to administrative exigencies and separately reviewed the impugned Order-in-Appeal. Decision to file the appeal had been communicated to the office of the Commissioner, Coimbatore only on 9.9.2005 (by probably the Commissioner of Trichy, the other member Commissioner of the Committee). The appeal papers, after preparation, were sent to Salem as the Commissioner of Salem was holding additional charge of Coimbatore. Despite earnest efforts, delay of 85 days could not be avoided. The Commissioner requested that the delay may be condoned.
3. Shri B.L. Meena, ld. SDR produced the file containing the proceedings in review of the Order-in-Appeal of the Commissioner of Coimbatore as directed by the Bench during the earlier hearing. The file does not contain a review order by the Committee. It is seen from the file that on 28.8.05, the Commissioner, Salem (in his capacity as Commissioner Coimbatore) recorded his approval to accept the order in appeal as the same was consistent with the decisions of the Tribunal and the Supreme Court. He also noted that on those grounds the erstwhile Commissioner, Coimbatore had accepted the subject order earlier. On 31.8.05 the Commissioner, Trichy recorded a different opinion and suggested filing of appeal. The Commissioner, Trichy had indicated that the decisions relied on by the Commissioner, Salem were on Section 11AB as it stood prior to 11.5.2001. Apart from the above views, the file does not contain any separate review order of the Committee of Commissioners.
4. Ld. Consultant, Shri S. Kandaswamy appearing for the respondents pointed out that the Commissioners did not sit jointly and reviewed the Order-in-Appeal independently and separately as per the COD application filed by the department. This was not in accordance with the Section 35B(2) of the Central Excise Act, 1944 which contemplated that the Committee of Commissioners form an opinion about the legality and propriety of the order under Review to decide if an appeal is to be filed against it. In the subject case the Committee did not sit together and take a view. Therefore, the appeal itself was not maintainable.
5. I have studied the rival submissions. The delay in filing the appeal is condoned considering the reasons for the same adduced constitute sufficient cause. After hearing both sides on the petition the appeal itself is taken up for disposal. Section 35B(2) ibid stipulates that if the Committee of Commissioners is of the opinion that an order of the Commissioner (Appeals) is not legal and proper, it may direct the proper Central Excise officer authorised for this purpose to file appeal against such an Order-in-Appeal. The Section stipulates joint sitting and deliberations by the Commissioners and forming an opinion by the Committee. In the instant case, Commissioners have taken divergent views on different dates sitting at different locations and appeal was filed by the executive Commissioner on receipt of suggestion to that effect from the other member Commissioner despite his own view to accept the order. This procedure is not in accordance with law and accordingly I dismiss the appeal as not validly filed.
(Order dictated and pronounced in open court)
