2013 (12) TMI 282 - AT - Central Excise

Recall of appeal - Reversal of cenvat credit amount directed Held that - The dismissal of the customs appeal for non-compliance with Section 35F of the Central Excise Act was an apparent error which crept into the final order dated 10.9.2012 on account of inadvertent oversight - Only the excise appeal was liable to be dismissed on the stated ground - the final order dated 10.9.2012 is recalled insofar as it affects the customs appeal, and the appeal is restored to its original number Decided in favour of Assessee.

Summary

Issues:
1. Restoration of appeal No. C/2302/2010
2. Dismissal of appeal No. E/720/2011 for want of pre-deposit
3. Error in dismissing the customs appeal for non-compliance with Section 35F of the Central Excise Act

Analysis:

1. The judgment deals with the restoration of appeal No. C/2302/2010 filed by M/s. MIC Electronics Ltd. The company sought restoration of this appeal but did not seek similar relief for appeal No. E/720/2011. The tribunal rejected the application related to appeal No. E/720/2011 and considered the ROA application No.35/2012 filed by the company in the customs appeal No. C/2302/2010. The appellant's counsel argued that there was no direction to make any pre-deposit in the customs appeal, leading to the dismissal of the appeal for want of pre-deposit. The tribunal heard both parties and reviewed the proceedings in the two appeals.

2. In the context of appeal No. E/720/2011, the DTA unit of the company was directed to reverse a certain amount of CENVAT credit or make a deposit as per a stay order dated 19.9.2011. Initially, there was a direction in the customs appeal for a pre-deposit, but this was later waived through a modification of the stay order. Subsequently, during proceedings related to the excise appeal, both appeals were dismissed on 10.9.2012 for want of pre-deposit. However, upon careful consideration, the tribunal found that the dismissal of the customs appeal for non-compliance with Section 35F of the Central Excise Act was an error due to inadvertent oversight. The excise appeal was the only one liable for dismissal on that ground.

3. Consequently, the tribunal recalled the final order dated 10.9.2012 in relation to the customs appeal and restored the said appeal to its original number. The ROA No.35/2012 filed by the company was allowed. The judgment rectified the error in dismissing the customs appeal and clarified that only the excise appeal was to be dismissed for non-compliance with Section 35F of the Central Excise Act.