2008 (6) TMI 500 - AT - Central Excise

Summary

Issues involved: Appeal against Order-in-Appeal withdrawing facility of paying duty fortnightly, direction to discharge duty liability consignment wise, rejection of appeal for non-compliance and on merits.

Summary:
The appellant defaulted in making fortnightly payments, leading to withdrawal of the duty payment facility under Rule 173G(1). Duty liability was directed to be discharged consignment wise. The appellant cleared goods during a specific period by debiting duty amount in Cenvat account, prompting a show cause notice for recovery. The adjudicating authority held the appellant liable to pay through PLA. The Commissioner (Appeals) directed the appellant to pre-deposit the amount, which was challenged by the appellant through an application for modification of the stay order. The Commissioner (Appeals) rejected the application and the appeal on grounds of non-compliance and merits, leading to the current appeal.

The appellant argued that debiting and discharging duty liability through Cenvat credit was permissible based on a precedent set by the Tribunal in a previous case. The appellant contended that the Commissioner (Appeals) had considered the appeal on merits despite rejecting it for non-compliance. On the other hand, the SDR argued that the issue needed re-consideration on merits, citing a Supreme Court decision.

Upon review of submissions and records, it was noted that the Commissioner (Appeals) had rejected the appeal for non-compliance and on merits. The Tribunal found that the rejection on merits was explicit in the Commissioner's order. Considering the precedent set by the Larger Bench in a specific case, it was concluded that the appellant's appeal was valid. The order-in-appeal was deemed unsustainable and set aside, allowing the appeal with consequential relief.