2017 (12) TMI 762 - AT - Central Excise

CENVAT credit - dolachar, charcoal dust and fly ash (waste and residue) - time limitation - Held that - the Order-in-Original is dated 12.3.2014 and the same was received by the appellant on 15.3.2014 as per the endorsement on the Order-in-Original and thereafter, the appeal was filed within two months as provided under Section 35 of the Central Excise Act. The Commissioner (A) has wrongly observed that the order was received by the appellant on 12.3.2014 and therefore, the appeal is time barred, more so when no condonation application was filed with the appeal - the appeal was very much within time - appeal allowed by way of remand.

Summary

Issues:
- Appeal against rejection of appeal by Commissioner (A) on grounds of admissibility
- Dispute over payment of excise duty on exempted final products
- Allegation of limitation in filing appeal before Commissioner (A)

Analysis:
1. Appeal admissibility: The appellant, engaged in manufacturing steel goods, was found clearing exempted final products without paying excise duty, leading to a show-cause notice for demanding payment and imposing penalties. The lower authority upheld the notice, except for penalties and confiscation. The appeal before the Commissioner (A) was dismissed on grounds of limitation without delving into the case's merits. The appellant argued that the appeal was filed within the stipulated time frame, supported by evidence of receipt of the Order-in-Original on 15.3.2014 and filing the appeal on 15.5.2014. The Commissioner (A) wrongly observed the receipt date as 12.3.2014, leading to the dismissal. The Tribunal found the appeal was timely filed as per Section 35 of the Central Excise Act, setting aside the Commissioner (A)'s decision and remanding the case for a merit-based review.

2. Payment of excise duty: The dispute arose from the Department's audit report highlighting the clearance of exempted final products without excise duty payment, triggering the demand for payment and interest. The appellant contended that the products were waste or residue from manufacturing and thus not subject to CENVAT credit denial. Despite the appellant's arguments, the lower authority issued a show-cause notice for payment and penalties under relevant provisions. While the Tribunal did not delve into the substantive merits of the case due to the limitation issue, it emphasized the need for the Commissioner (A) to review the case on its merits after setting aside the time bar decision.

3. Limitation issue: The crux of the matter revolved around the Commissioner (A)'s dismissal of the appeal based on the perceived delay in filing without a condonation application. The appellant maintained that the appeal was filed within the statutory time limit, supported by documentary evidence of receipt and filing dates. The Tribunal found the dismissal on grounds of limitation unsustainable, emphasizing that the appeal was filed within the prescribed period, directing the Commissioner (A) to reexamine the case on its substantive merits.