2013 (3) TMI 63 - AT - Central Excise

Non-deposit of amount as directed while disposing of their Stay Application - assessee submitted that there was 25 days delay in filing the appeal - Held that - As find from the records that while filing the Appeal Commissioner the Appellant has made a request for condonation of delay of 25 days even though he has made observation on the said delay in his order dated 12.03.2012, but no order condoning the delay was passed by him nor the Appeal was dismissed on the ground of time bar. The Appeal was simply dismissed on the ground of non-compliance with the provisions of section 35F of Central Excise Act, 1944. Thus the said order is contradictory in nature as at one place it was observed that there was a delay of 25 days and while dismissing the Appeal it was observed that the Applicant failed to comply with the provisions of Section 35F of Central Excise Act, 1944 without discussing the fact of delay in filing the Appeal. In these circumstances the impugned order is set aside and the matter is remanded back to decide the issue afresh after disposing of their Application seeking condonation of delay. In favour of assessee by way of remand.

Issues:
1. Waiver of pre-deposit of CENVAT Credit and penalty.
2. Dismissal of appeal by Ld. Commissioner(Appeals) due to non-deposit.
3. Delay in filing appeal and its justification.
4. Compliance with Section 35F of Central Excise Act, 1944.
5. Contradictory observations in the order of Ld. Commissioner(Appeals).

Analysis:

1. Waiver of Pre-deposit:
The Applicant sought waiver of pre-deposit of CENVAT Credit and penalty. The issue revolved around availing CENVAT Credit on inputs used in the manufacture of capital goods. The Applicant argued that the inputs fell under the definition of input as per Rule 2(k) of CENVAT Credit Rules, 2004. After considering both sides, the Tribunal decided to waive the requirement of pre-deposit and proceeded with the disposal of the appeal.

2. Dismissal of Appeal due to Non-deposit:
The Ld. Commissioner(Appeals) had dismissed the Applicant's appeal citing non-compliance with the directive to deposit the amount. However, the Tribunal noted that the dismissal was solely based on non-compliance with Section 35F of the Central Excise Act, 1944. The Tribunal found discrepancies in the order as it did not explicitly address the delay in filing the appeal. Consequently, the impugned order was set aside, and the matter was remanded to the Ld. Commissioner(Appeals) for a fresh decision after addressing the delay issue.

3. Delay in Filing Appeal:
The Applicant had a 25-day delay in filing the appeal, which was attributed to circumstances beyond their control. Although the Ld. Commissioner(Appeals) acknowledged the delay, no specific order was passed to condone it. The Tribunal emphasized the contradictory nature of the order, highlighting the need for a fair opportunity for the Applicant to present their case and produce necessary evidence.

4. Compliance with Section 35F:
The Ld. Commissioner(Appeals) based the dismissal of the appeal on non-compliance with Section 35F of the Central Excise Act, 1944. However, the Tribunal observed that the order lacked a detailed discussion on the delay in filing the appeal, leading to inconsistencies in the decision-making process. The Tribunal remanded the matter for a fresh decision, emphasizing the importance of addressing all relevant issues.

5. Contradictory Observations in the Order:
The Tribunal pointed out the contradictory nature of the Ld. Commissioner(Appeals)'s order, where the delay in filing the appeal was noted but not conclusively addressed in the dismissal. This inconsistency prompted the Tribunal to set aside the order and remand the case for a fair and comprehensive reconsideration, allowing both parties the opportunity to present their arguments and evidence. The appeal was allowed by way of remand, and the stay petition was also disposed of in the process.

← Previous Next →