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TMI Blog2017 (5) TMI 642X X X X Extracts X X X X X X X X Extracts X X X X ..... form of a letter also. Merely, because the decision is in the form of a letter, it cannot take away the right of appeal from the aggrieved person - the decision of the Assistant commissioner dated 25.01.2013 is an order appealable before the Commissioner (Appeals) - the matter is remanded to the Commissioner (Appeals) for reconsideration of issue on merits - appeal allowed by way of remand. - E/27556/2013 - A/30496/2017 - Dated:- 3-4-2017 - Ms. Sulekha Beevi., C.S. Member (Judicial) Sh. P. Dwarakanath, Consultant for the Appellant Sh. Arun Kumar, Deputy Commissioner (AR) for the Respondent [Order per: Sulekha Beevi, C.S.] 1. The above appeal is filed against the order passed by Commissioner (Appeals) who held that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued by the Assistant Commissioner rejecting the request of the appellant cannot be treated as a speaking order which is appealable under Section 35(1) of Central Excise Act, 1944. The Commissioner (Appeals) instead of considering the request of the appellant to avail the credit on the inputs has gone into aspects of time bar and unjust enrichment under Section 11B. that appellants had on requested for clarification as to whether they can take re-credit of CENVAT credit which was mistakenly reversed by them. The Assistant Commissioner had issued a letter communicating the decision on the issue. That therefore the said letter itself is and appealable order. The Commissioner (Appeals) rejected the appeal stating that the decision of the Assi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, it is seen that commissioner (Appeals) has also considered that the Assistant Commissioner has not analysed the issue of time bar and unjust enrichment. 6. Fort better appreciation Section 35(1) of Central Excise Act, 1944 is reproduced as under. 35. Appeals to Commissioner (Appeals)- (1) any person aggrieved by any decision or order passed under this Act by a Central Excise Officer lower in rank than a commissioner of Central Excise may appeal to the commissioner of Central Excise (Appeals) hereafter in this Chapter referred to as the Commissioner (Appeals) within sixty days from the dated of the communication to hi of such decision or order: Provided that the Commissioner (Appeals) may, if he is satisfied that the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Gases Ltd, [2008 (226) ELT 468] INA SIMILAR SITUATION, THIS Tribunal held that where the order impugned determines the rights of the party or is likely to affect its rights, communication thereof cannot be said to be a communication simplicitor and appeal against such communication should be maintainable. From the above discussions, I have no hesitation to hold that the decision of the Assistant commissioner dated 25.01.2013 is an order appealable before the Commissioner (Appeals). In view thereof, the matter is remanded to the Commissioner (Appeals) for reconsideration of the issue on merits. The appeal is allowed by way of remand. (Order dictated pronounced in open court) - - TaxTMI - TMITax - Central Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X
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