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2024 (12) TMI 148 - AT - Central ExciseDismissal of appeal for the reason that instead of filing the appeal within 60 days from the date of receipt of the order that was impugned in the appeal, the appeal was filed 3 days after the expiry of 60 days without even moving an application for condonation of delay - liability to pay central excise duty on the additional consideration collected a sales tax but not deposited with Government. HELD THAT - The scheme that is involved is the Rajasthan Investment Promotion Scheme, 2010 which deals with grant of subsidy, its quantum and the procedure for claiming it. This issue, has been decided by this Tribunal in M/S HARIT POLYTECH PVT. LTD. VERSUS COMMISSIONER, CENTRAL EXCISE CGST- JAIPUR I, GANPATI PLASTFAB LTD., M/S APEX ALUMINIUM EXTRUSION PVT. LTD., M/S MAHA MAYAY STEELS, M/S. TIRUPATI BALAJI FURNACES PVT. LTD., M/S. TRANS ACNR SOLUTIONS PVT. LTD., M/S. FRYSTAL PET PVT. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, CUSTOMS CGST- ALWAR 2023 (3) TMI 1120 - CESTAT NEW DELHI where it was held that 'The subsidy amount under the promotion policy does not affect the selling price of the goods.' The matter was not examined on merits by the Commissioner (Appeals) as the appeal was dismissed only on the ground of being barred by time. As the issue on merits has been decided by the Tribunal, it is appropriate not to remand the matter to the Commissioner (Appeals) for passing a fresh order and have proceeded to decide the appeal on merits. The impugned order dated 17.01.2020 passed by the Commissioner (Appeals) and the order dated 22.03.2019 passed by the Superintendent are, therefore, set aside - appeal is allowed.
Issues:
1. Delay in filing the appeal beyond the statutory period. 2. Failure to issue a deficiency memo for the delay in filing. 3. Lack of communication regarding the delay in filing the appeal. 4. Applicability of delay condonation provisions. 5. Merits of the case regarding central excise duty liability. 6. Interpretation of the Rajasthan Investment Promotion Scheme, 2010. 7. Precedent set by the Tribunal in a similar case. Analysis: The appeal was filed beyond the statutory period of 60 days, resulting in dismissal by the Commissioner (Appeals) for lack of an application for condonation of delay. The appellant argued that the office should have issued a deficiency memo for the delay, which was not done, and that the appeal was prepared on time but filed late due to an internal error. The appellant contended that the delay of three days should be condoned, citing procedural lapses by the Commissioner's office in notifying about the delay. The Tribunal referenced a similar case from the Madras High Court, emphasizing the importance of providing an opportunity for condonation of delay and faulting the Commissioner for not following proper procedures in handling the delay issue. Despite the delay, the Tribunal considered the minimal delay of three days and the lack of notice regarding the delay condonation application, leading to the decision to condone the delay and proceed with hearing the appeal on merits. The core issue revolved around the liability of the appellant to pay central excise duty on additional consideration collected as sales tax but not deposited with the government. The Tribunal referenced the Rajasthan Investment Promotion Scheme, 2010, to analyze the subsidy scheme and its impact on transaction value. Relying on a previous Tribunal decision in a similar case, the Tribunal concluded that the appellant was not liable to pay central excise duty based on the interpretation of the subsidy scheme and its effect on selling price. Since the Commissioner (Appeals) had not examined the matter on merits due to the delay issue, the Tribunal decided to adjudicate on the merits directly, relying on the precedent set by the Tribunal in a similar case. Consequently, the Tribunal set aside the orders of the Commissioner (Appeals) and the Superintendent, allowing the appeal in favor of the appellant based on the merits of the case and the Tribunal's interpretation of the applicable laws and schemes. In conclusion, the Tribunal's decision highlighted the importance of procedural fairness, the interpretation of relevant laws and schemes, and the application of precedent in deciding the appeal in favor of the appellant.
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