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TMI Blog2010 (2) TMI 455X X X X Extracts X X X X X X X X Extracts X X X X ..... as not provider of output services, order passed by the adjudicating authority only appealable under section 35 of Act and not under section 85 of the Act. Further held that - since under proviso to section 35(1) of Act appellate authority can condone delay of appeal upto 30 days only beyond period of 60 days since instant appeal against order in original was filed far beyond period of 90days, delay was not condonable. - E/468 OF 2008 - A/54/2010/SMB/C-IV - Dated:- 12-2-2010 - P.G. CHACKO, JUDICIAL MEMBER Dr. T. Tiju for the Appellant. Ms. Purnima Singh for the Respondent. ORDER 1. In this appeal filed by the revenue, an interesting question of law arises. In adjudication of a show-cause notice, the original authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral Excise Act and that such an appeal should have been filed within 60 days from the date of communication of the impugned order. It is submitted that the appellate authority had power to condone delay only up to 30 days beyond the said period of 60 days. In other words, any appeal to be entertained by the Commissioner (Appeals) on merits under section 35 of the Central Excise Act, should be filed within 90 days from the date of communication of the order of adjudication. In the present case, admittedly, the appeal against the order-in-original was filed beyond 90 days. There was a delay of 62 days even beyond this period of 90 days, which delay, according to the revenue, could not be condoned by the Commissioner (Appeals) for want of au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of the Finance Act are not applicable inasmuch as the CENVAT credit in question was utilised for payment of duty of excise on final products. According to the learned SDR, this case is squarely covered by the provisions of the Central Excise Act and, therefore, while entertaining the appeal filed by the assessee in whatever format, the learned Commissioner (Appeals) ought to have treated the same as an appeal filed under section 35 of the Central Excise Act. He ought to have considered the delay condonation application under this provision only. 3. The learned SDR submits that it is settled law that the Commissioner (Appeals) has no power to condone any delay of appeal beyond the condonable period of delay of 30 days specified under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of CENVAT credit. If such availment/utilisation is made of CENVAT credit of service tax paid on an input service, according to the learned counsel, any dispute relating to such availment/utilisation of credit would get covered under the relevant provisions of the Finance Act, 1994. According to the learned counsel, it should be regarded as Service Tax dispute. On identical reasoning, counsel submits that, where the dispute relates to availment/ utilisation of CENVAT credit on inputs/capital goods, it should be regarded as a dispute arising under the Central Excise Act. It is pointed out that rule 14 of the CENVAT Credit Rules was invoked in the show-cause notice and the order-in-original for recovery of the CENVAT credit in question. R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e maximum period of limitation prescribed for a Central Excise appeal under section 35 of the Central Excise Act. Under section 85 of the Finance Act, 1994, the normal period of limitation was 90 days and a period of delay up to 90 days was condonable by the Commissioner (Appeals). The respondent, therefore, filed an application for condonation of delay under section 85 of the Finance Act, 1994, being aware of the legal position that the delay of their appeal was within the 'condonable range' of section 85 of the Finance Act, 1994. The question to be determined is whether the correct provision of law was applied by the Commissioner (Appeals). Obviously, the answer can only be in the negative. Rule 14 of the CENVAT Credit Rules, 2004 provide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y condonation application filed by the party. He ought to have correctly applied the proviso to section 35(1) of the Central Excise Act to the said delay condonation application. 6. Admittedly, in this case, the appeal against the order-in-original was filed far beyond even the period of 90 days. Under the proviso to section 35(1) ibid, the appellate authority could condone delay of appeal up to 30 days only beyond the period of 60 days prescribed under the sub-section. The appeal filed by the respondent was beyond the condonable period of delay prescribed under the proviso ibid, which was not liable to be condoned by the Commissioner (Appeals), as held by the Apex Court in the case of Singh Enterprises (supra). Para 8 of the judgment of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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