2008 (1) TMI 709 - AT - Central Excise

Summary

Issues:
Appeal maintainability due to non-pre-deposit within time, res judicata, applicability of cited decisions, jurisdiction of the appellant's unit.

Issue 1 - Appeal Maintainability:
The appeal was filed against a letter stating that the appeal to the Commissioner (Appeals) was not maintainable due to non-pre-deposit of Rs. 2 lakhs within the specified time. The appellant argued that their factory was closed since 1998, making it impossible to pre-deposit the amount on time. The appellant cited cases where delays of 13 or 9 years were condoned. However, the Tribunal dismissed the appeal, stating that there was no appealable order from a competent authority, as the letter was issued by the Superintendent within the appellant's unit and was not signed by the Commissioner. Therefore, the Tribunal held that the appellant should approach departmental authorities for an appealable order.

Issue 2 - Res Judicata:
The Tribunal noted that a previous order had already been passed dismissing the appeal against the same impugned Order-in-Appeal, citing lack of evidence for service of the order and no reasonable grounds for condoning the delay in filing the appeal. The appellant argued that there was no res judicata as the cause of action and relief sought in the earlier and present proceedings were different. The Tribunal considered this argument but ultimately dismissed the appeal based on the lack of an appealable order.

Issue 3 - Applicability of Cited Decisions:
The appellant relied on various decisions to support their argument, emphasizing that the cause of action and relief sought in the present proceedings were distinct from previous cases. However, the Departmental Representative contended that the cited decisions related to civil suits and were distinguishable from the present case, where a Show Cause Notice was issued, covering all aspects unlike civil suits with varying causes of action.

Issue 4 - Jurisdiction of the Appellant's Unit:
The Tribunal analyzed the jurisdictional aspect, emphasizing that the impugned order was not appealable as it was issued by the Superintendent within the appellant's unit and not signed by the Commissioner. This lack of an appealable order from a competent authority led the Tribunal to dismiss the appeal and stay application.

In conclusion, the Tribunal dismissed the appeal due to the absence of an appealable order from a competent authority, highlighting the importance of jurisdiction and proper authorization in appeal processes. The arguments regarding res judicata and cited decisions were considered but did not alter the outcome based on the specific circumstances of the case.