2007 (2) TMI 502 - AT - Central Excise

Summary

Issues:
Appeal against order-in-appeal dated 21-9-2004 - Maintainability under Section 35A of Central Excise Act, 1944.

Analysis:
The case involved an appeal against an order-in-appeal dated 21-9-2004 regarding the appellant's compliance with a duty deposit order. The appellant had wrongly claimed credit for duty on capital goods under Rule 57Q of Central Excise Rules, 1944, leading to a demand of Rs. 48,000. The Assistant Commissioner confirmed the duty demand, and subsequent appeal processes ensued. The Commissioner (Appeals) vacated the stay order due to non-appearance by the appellant, leading to rejection of the appeal. The appellant contended compliance by depositing the amount earlier under protest. The Commissioner (Appeals) rejected the appeal without considering the merits, stating lack of power to restore the appeal.

The appellant argued for restoration of the appeal based on timely compliance with the deposit order, citing a Gujarat High Court decision. The respondent contended that no appeal was maintainable against the impugned order as it was not against an adjudication order under Section 35A of the Act. The Tribunal analyzed the relevant sections of the Central Excise Act, highlighting the appeal provisions before the Commissioner (Appeals) and the Appellate Tribunal under Sections 35, 35A, and 35B.

The Tribunal concluded that the appeal before the Tribunal was not maintainable as the impugned order was not covered under Section 35A of the Act. The order-in-appeal dated 21-9-2004 was against a representation, not an order under Section 35A. The appellant had not challenged the earlier order-in-appeal dated 19-3-1998 under Section 35A before the Tribunal, making the current appeal invalid. The Tribunal distinguished the present case from the Scan Computer Consultancy case cited by the appellant, emphasizing the failure to challenge the previous order under Section 35A. Consequently, the appeal against the impugned order-in-appeal dated 23-9-2004 was deemed not maintainable and rejected.

This judgment clarifies the scope of appeal provisions under the Central Excise Act, emphasizing the necessity to challenge relevant orders under Section 35A for appeal validity. The decision underscores the importance of complying with procedural requirements and addressing adjudication orders directly in the appeal process to ensure maintainability before the Appellate Tribunal.