2012 (6) TMI 48 - AT - Central Excise

Duty demand on the ground that paper cess is to be taken into consideration while calculating the amount of education cess and higher education cess - appeal dismissed on the ground as there is a delay of 20 days in filing the appeal and no sufficient reason has been explained - assessee contested that in the forwarding letter of the adjudication order it is stated that the appeal can be filed within 90 days from the receipt of the order - Held that - In the forwarding letter it was specifically mentioned that appeal can be filed within 90 days from the receipt of the order hence finding merit in the contention of the applicants pre-deposit of the dues is waived for hearing of the appeal - the issue is covered against the Revenue in the case of CCE vs. Sahakari Khand Udyog Mandali Ltd. 2010 (3) TMI 718 (HC) - matter is remanded to the Commissioner (Appeals) to decide the appeal on merits without asking for any pre-deposit - in favour of assessee.

Issues:
- Waiver of pre-deposit of duty and interest
- Delay in filing appeal before Commissioner (Appeals)
- Interpretation of time limit for filing appeal
- Applicability of education cess and higher education cess
- Precedent set by the decision of the Hon'ble Gujarat High Court

Waiver of Pre-deposit of Duty and Interest:
The applicant sought waiver of pre-deposit of duty and interest amounting to Rs.16,426. The case involved the manufacture of various paper varieties subject to excise duty and paper cess. A show cause notice was issued demanding duty considering paper cess in calculating education cess and higher education cess. The adjudicating authority upheld the demand. The applicants appealed to the Commissioner (Appeals), who dismissed the appeal citing a 20-day delay in filing without sufficient reason. However, the applicants requested a decision on merits, highlighting that the appeal was filed within 90 days based on the forwarding letter of the adjudication order.

Delay in Filing Appeal Before Commissioner (Appeals):
The Commissioner (Appeals) contended that appeals must be filed within 60 days from receiving the adjudication order, with a further 30-day condonable delay for sufficient cause. The learned AR argued that as no sufficient cause was shown for the delay, the dismissal was justified. Nevertheless, the forwarding letter accompanying the adjudication order stated that appeals could be filed within 90 days, leading the Tribunal to acknowledge the merit in the applicants' contention. Consequently, the pre-deposit of dues was waived for the appeal hearing.

Interpretation of Time Limit for Filing Appeal:
The Tribunal noted the discrepancy between the forwarding letter's 90-day appeal window and the statutory 60-day limit for filing appeals under Section 35 of the Central Excise Act. Given this, the Tribunal found that the applicants did not fail to provide a sufficient cause for the delay. Additionally, the Tribunal referenced the decision of the Hon'ble Gujarat High Court in a specific case, which supported the applicants' position and influenced the decision to condone the delay in filing the appeal before the Commissioner (Appeals).

Applicability of Education Cess and Higher Education Cess:
The case involved a complex issue regarding the calculation of education cess and higher education cess concerning the liability for paper cess. The applicants' argument, supported by the Tribunal's interpretation of the forwarding letter and the precedent set by the Gujarat High Court decision, played a crucial role in determining the waiver of pre-deposit and remanding the matter for a decision on merits without requiring any pre-deposit.

Precedent Set by the Decision of the Hon'ble Gujarat High Court:
The Tribunal relied on the decision of the Hon'ble Gujarat High Court in a specific case to support the applicants' position and justify the condonation of the delay in filing the appeal before the Commissioner (Appeals). The Tribunal found that the issue was covered against the Revenue by this precedent, leading to the setting aside of the impugned order and the remand of the matter for a fresh decision on merits without the need for pre-deposit, ensuring a fair opportunity for the appellants to present their case.

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