2019 (8) TMI 377 - AT - Central Excise

Condonation of delay of 5 days in filing appeal - CENVAT credit - input services - outward GTA Service - HELD THAT - The Ld. Commissioner (Appeals) is empowered to condone the delay of 30 days after normal period of 60 days. The condonation of delay was sought by the appellant on the ground that concern staff was not well and to that effect the medical certificate was submitted. In my considered view on the basis of medical ground, the Ld. Commissioner (Appeals) should have condoned the delay. CENVAT Credit - input services - outward GTA Service - HELD THAT - Once he rejects the appeal on limitation, he has no jurisdiction to entertain the appeal on merit - the denial of cenvat credit was on the basis of Hon ble Supreme Court judgment in COMMISSIONER OF CENTRAL EXCISE SERVICE TAX VERSUS ULTRA TECH CEMENT LTD. 2018 (2) TMI 117 - SUPREME COURT case, subsequently, this Tribunal has passed judgment after considering Hon ble Supreme Court judgment in M/S SANGHI INDUSTRIES LTD. VERSUS C.C.E. KUTCH (GANDHIDHAM) 2019 (2) TMI 1488 - CESTAT AHMEDABAD therefore, in the light of subsequent development, the matter needs to be re-considered on merit. Appeal allowed by way of remand.

Summary

Issues:
1. Appeal against Order-In-Appeal dismissed on the ground of limitation
2. Admissibility of cenvat credit on outward GTA
3. Condonation of delay in filing the appeal
4. Jurisdiction of Ld. Commissioner (Appeals) to entertain appeal on merit after rejecting on limitation
5. Impact of subsequent judgments on the merit of the case

Analysis:
1. The appeal was dismissed by the Ld. Commissioner (Appeals) due to a delay of 5 days in filing, with a COD application. The Ld. Commissioner (Appeals) cited the inadmissibility of cenvat credit on outward GTA as per a Supreme Court decision. The appellant sought condonation of delay on medical grounds, which the Ld. Commissioner (Appeals) did not grant. The Tribunal observed that the delay should have been condoned as the staff was unwell, and the Ld. Commissioner (Appeals) had the authority to condone a delay of up to 30 days after the normal 60-day period.

2. Regarding the merit of the case, the Tribunal noted that once an appeal is rejected on limitation grounds, the authority does not have jurisdiction to consider the appeal on its merits. However, the Ld. Commissioner (Appeals) upheld the denial of cenvat credit based on a previous Supreme Court judgment. The Tribunal highlighted that subsequent judgments, including one in the case of Ultratech Cement Ltd, had been passed by the Tribunal, considering the Supreme Court decision in Sanghi Industries. Therefore, in light of these developments, the matter needed to be reconsidered on its merits.

3. Consequently, the Tribunal set aside the impugned order and remanded the case to the Ld. Commissioner (Appeals) to pass a fresh order on merit without addressing the time bar issue. The appeal was allowed by way of remand, emphasizing the need for a reconsideration of the case based on subsequent legal developments. The decision was dictated and pronounced in an open court setting.