2015 (10) TMI 914 - AT - Central Excise

Restoration of appeal - whether making thread amounts to manufacture and is chargeable to duty - held that - The question of application for advance ruling arises only when an eligible person wants the authority s decision on some question relating to rate/levy of duty, valuation, etc., and the absence of assessment order against him, he cannot approach the Tribunal or any High Court. But when there is an adverse order of commissioner against an assessee, the only course left before him is to file an appeal before the Tribunal which the Tribunal is bound to decide on merits. Since the order impugned in this appeal clearly affects the appellant adversely, and the appellant has good and valid reason to be aggrieved with this order and under Section 35B any person aggrieved by an order passed by Commissioner as an adjudicating authority or the Commissioner (Appeals), can file appeal to Tribunal, the order dated 8-1-2014 dismissing the appeal on the ground that the impugned order does not adversely affect him, suffers from a mistake apparent from record - Appeal restored.

Summary

Issues:
Manufacture of polyester thread, chargeability to duty, appeal against Commissioner (Appeals) order, restoration of appeal, excisability of sewing thread, dismissal of appeal without merit consideration.

Analysis:

1. Manufacture of Polyester Thread and Chargeability to Duty:
The appellant, a manufacturer of polyester thread made by twisting duty paid yarn, contested whether the process of making thread amounts to manufacture and is subject to duty. The Assistant Commissioner initially ruled in favor of the appellant, but the Commissioner (Appeals) reversed this decision, holding that the process constitutes manufacture. This dispute led to the filing of an appeal before the Tribunal under Section 35B.

2. Appeal Against Commissioner (Appeals) Order and Restoration of Appeal:
The appellant challenged the Commissioner (Appeals) order, arguing that making sewing thread amounts to manufacture, attracting central excise duty. The appellant contended that the appeal should be decided on merit and not dismissed without considering the case's substance. The Tribunal agreed that the appeal must be heard on its merits, especially since there were no demands for duty or penalties, allowing the restoration of the appeal.

3. Excisability of Sewing Thread and Dismissal of Appeal Without Merit Consideration:
The core issue revolved around whether the polyester sewing thread manufactured by the appellant is excisable. The Tribunal emphasized that once an appeal is filed against an adverse order of the Commissioner (Appeals) or Commissioner, it must be decided on merit unless specific provisions are not met. Dismissing an appeal without delving into the case's merits, especially when the appellant is adversely affected, was deemed a mistake. The Tribunal recalled the previous order and restored the appeal for a thorough examination.

In conclusion, the Tribunal allowed the restoration of the appeal, directing the matter to be listed for further proceedings. The judgment highlighted the importance of considering appeals on their merits, especially when the appellant is aggrieved by an adverse decision, ensuring a fair and just adjudication process in excise duty matters.