2010 (5) TMI 367 - AT - Central Excise

Delay in filing appeal - Waiver of pre-deposit - demand was confirmed after denying the Cenvat Credit - Commissioner (Appeals) dismissed the Appeal as time barred as the same has been filed even after 30 days condonable period - Appellant was under the impression that it is a demand of Service Tax under the Finance Act 1994 and as per the provisions of Section 85 of the Finance Act the limitation for filing Appeal is three months - Held that - demand is confirmed under Central Excise Act & CENVAT Credit Rules hence - no merit in the contention of Appellant that the Appeal filed before the Commissioner (Appeals) was in the format provided for the Service Tax - Petition and Appeal is dismissed

Summary

Issues involved:
1. Appeal for waiver of pre-deposit of duty and penalty.
2. Dismissal of Appeal by Commissioner (Appeals) as time-barred.
3. Interpretation of Show Cause Notice invoking various provisions.
4. Jurisdiction of the adjudicating authority under Central Excise Act.
5. Applicability of Section 35 of Central Excise Act for filing Appeal.
6. Bona fide belief of the Appellant regarding the nature of proceedings.
7. Dismissal of Appeal by the Tribunal.

Analysis:

1. The Applicant filed an Application for waiver of pre-deposit of duty and penalty. The demand was confirmed after denying the CENVAT Credit.

2. The Commissioner (Appeals) dismissed the Appeal as time-barred, as it was filed beyond the condonable period of 30 days under Section 35 of the Central Excise Act.

3. The Applicant contended that the Show Cause Notice invoked provisions of the CENVAT Credit Rules, Section 73 of the Finance Act for demand, and Sections 11AC of the Central Excise Act and 78 of the Finance Act for penalty. The Appellant believed it was a demand related to Service Tax under the Finance Act, 1994, which has a different limitation period for filing an Appeal.

4. The Revenue argued that the adjudicating authority confirmed the demand under the Central Excise Act and Rules, and the penalty was imposed under the CENVAT Credit Rules, making the Appeal subject to Section 35 of the Central Excise Act.

5. The Tribunal found that the adjudication order was under the Central Excise Act and Rules, not the Finance Act as believed by the Appellant. The Commissioner had the power to condone a delay of 30 days beyond the normal 60-day limitation period, as established by precedent.

6. The Tribunal rejected the Appellant's claim of a bona fide belief that the proceedings were under the Finance Act, emphasizing that the adjudication order clearly pertained to CENVAT Credit under the Central Excise Act and Rules.

7. Consequently, the Tribunal upheld the dismissal of the Appeal by the Commissioner (Appeals) and the Tribunal itself, as the proceedings were related to the Central Excise Act and CENVAT Credit Rules, not Service Tax as believed by the Appellant. The Stay Petition and Appeal were both dismissed.