2010 (1) TMI 1045 - AT - Central Excise

Issues Involved:
1. Disallowance of Modvat credit on capital goods and inputs.
2. Doctrine of merger in appellate jurisdiction.
3. Right of appeal for both parties and the Department.
4. Scope and jurisdiction of the Commissioner (Appeals).

Detailed Analysis:

1. Disallowance of Modvat Credit on Capital Goods and Inputs:
The facts in Appeal No. E/2833/2007 involved a show cause notice proposing disallowance of Modvat credit on capital goods amounting to Rs. 1,65,263/- and on inputs amounting to Rs. 65,200/-. The original authority allowed the credit on capital goods but denied it on inputs. The assessee's appeal against the denial of credit on inputs was rejected by the Commissioner (Appeals). Similarly, in Appeal No. E/2832/2007, a show cause notice proposed denial of credit on certain capital goods. The original authority partly allowed and partly denied the credit, and the assessee's appeal against the denial was also rejected by the Commissioner (Appeals).

2. Doctrine of Merger in Appellate Jurisdiction:
The Department contended that the issues before the original authority were distinct and identifiable, and thus, the doctrine of merger did not apply. They argued that the right of the Department to file an appeal on issues decided against it was independent of the party's appeal. The Department relied on precedents such as C.C.E., Bhavnagar v. Ultra Tech Cement Co. Ltd. and Mauria Udyog Ltd. v. C.C.E., Delhi-II to support their stance. Conversely, the Company Secretary argued that the Commissioner (Appeals) had wide jurisdiction to scrutinize the entire order of the original authority, leading to the merger of the original order with the appellate order, thus precluding further appeals by the Department.

3. Right of Appeal for Both Parties and the Department:
The judgment emphasized that when a decision is partly in favor of the assessee and partly in favor of the Department, both parties have the right to appeal the portions against them. The right of appeal for each party is independent and not contingent on the other's actions. Even if one party does not appeal within the prescribed time, the other party's appeal can still proceed, and the non-appealing party can file cross-objections within the specified time limit.

4. Scope and Jurisdiction of the Commissioner (Appeals):
The Commissioner (Appeals) has the power under Section 35A to pass orders enhancing penalties or fines, but this does not interfere with the primary rights of appeal for either the Department or the party. The doctrine of merger should be applied considering the distinct subject matters of appeals by the Department and the party. The Tribunal referenced the case of Commissioner of Central Excise, Bhavnagar v. Ultra Tech Cement Co. Ltd., which clarified that when the subject matters of appeals are distinct, the doctrine of merger does not bar the Department's appeal.

Conclusion:
The Tribunal concluded that the issues decided by the original authority were distinct and independent, allowing both the Department and the party to exercise their primary rights of appeal. The Commissioner (Appeals) erred in rejecting the Department's appeals by applying the doctrine of merger without considering the merits. Therefore, the Tribunal set aside the impugned orders of the Commissioner (Appeals) and directed a fresh hearing on the merits of the Department's appeals, ensuring reasonable opportunity for both sides to be heard.

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