9911796707
TMI Blog2002 (4) TMI 841X X X X Extracts X X X X X X X X Extracts X X X X ..... zed the same for payment of duty on round boxes (final product), which they classified under CSH 4819.19 of the Schedule to the Central Excise Tariff Act, 1985 and on which they paid duty @ l6%. The department, by show cause notice, proposed to disallow the credit, alleging that the final product in respect of which the credit was availed and utilized was classifiable under CSH 4410.90 and chargeable to nil rate of duty and, therefore, the availment of Modvat credit was barred by Rule 57C(1) of the Central Excise Rules, 1944. The proposal was contested by the assessee. The Deputy Commissioner, who adjudicated the dispute, disallowed the above credit and ordered recovery thereof with interest and imposed a penalty of Rs. 10,000/- on the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .19. However, the jurisdictional Deputy Commissioner of Central Excise approved classification under CSH 4410.90 only. The order of the Deputy Commissioner was taken in appeal to the Commissioner (Appeals) and that appeal is still pending. If the appellants claim as to classification is accepted, the final product will be chargeable to duty @ 16%, in which event they will be entitled to take Modvat credit on their inputs used in the manufacture of such final product. If, on the other hand, the classification is held under CSH 4410.90 as claimed by the department, then the appellants will not be entitled to take such credit on the inputs by virtue of the provisions of Rule 57C(1). Therefore, the Consultant submits, the decision on the class ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted, in their letter dated 24-7-2001, that they had received the Assistant Commissioner s order only on 30-12-2000 and that the appeal was within the period of three months from the said date. The Commissioner (Appeals) did not accept this submission for want of evidence and rejected the appeal as time-barred. Today, it has been submitted by the Consultant that the order of the Assistant Commissioner had been received by an employee of the appellants on 12-11-2000 but it was only on 30-12-2000 that he delivered the order to the appellants. I find that this explanation was not offered by the appellants in their letter dated 24-7-2001 to the Commissioner (Appeals). Nevertheless, it appears from the record that, on 28-1-2002 i.e. after th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the classification issue relating to the final product. A final decision on the classification of the final product in respect of which the Modvat credit was availed and utilized will have a direct bearing on the issue whether the appellants were entitled to take the input credit in question. The lower appellate authority ought to have refrained from disposing of the appeal summarily, pending the assessee s appeal against the Deputy Commissioner s order on the classification issue. 6. In view of the above findings, I set aside the order of the Commissioner (Appeals) and allow the present appeal by way of remand, directing the lower appellate authority to decide on the assessee s classification appeal first in accordance with law and the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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