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TMI Blog2023 (4) TMI 657X X X X Extracts X X X X X X X X Extracts X X X X ..... 2012 denied the benefit claimed by the appellant-assessee. It is also stated in the said letter that in case of availment of credit which was claimed by the appellant, penal action shall be taken against the respondent. The said letter therefore is clearly a decision given by a proper officer. From the plain reading of Section 35, it is clear that any decision or order passed by a proper officer below the rank of Commissioner is appealable before Commissioner (Appeals). Accordingly there is absolutely no ambiguity in Section 35. The letter whereby the Superintendent has clearly held that respondent is not eligible to take credit, the said letter is clearly a decision against which appeal lies before Commissioner (Appeals) as per the stri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er size and clear the same by discharging excise duty. The unit is registered with the Central Excise department. They also have an in-house medical centre which renders medical facilities to the employees of the company and at times other neighboring manufacturing units also avail medical facilities from the said centre. The respondent are receiving various duty paid inputs and capital goods and input services. The respondent are also having plant for Nitrogen, Steam plant, Chilling unit and compressed air unit for use in the manufacturing process. These facilities are also shared by the respondent with neighbouring units like Bayer Corp Science and Novartis. For manufacturing of final products the respondent are using common facilities/ m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or both dutiable as well as exempted goods. The respondent calculated the eligible credit under Rule 6(5) and then calculated the proportionate credit eligible after considering reversal as required under Rule 6(3) for common input services. After such calculation, the respondent filed intimation for availing Cenvat credit dated 21.09.2012 for each of the financial years to the department. 3. The respondent received a letter dated 25.09.2012 from the Superintendent, Central Excise Customs, Range-1, Division-II, Aknkleshwar. Vide the said letter the respondent were directed not to avail the Cenvat credit for the period 2007-08 to 2011-12 as mentioned in the respondent s letter. The letter dated 25.09.2012 further stated that recovery ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t-aside. He reiterates the grounds of appeal. 5. On the other hand Shri Anand Nainawati with Shri Amber Kumrawat, learned Counsels appearing on behalf of the respondent submits that the respondent initially not availed Cenvat credit in routine and they asked the department by giving intimation about their intention to avail Cenvat credit. However, the same was denied by letter dated 25.09.2012 by the Superintendent. He submits that denial for availing Cenvat credit is a decision affecting the rights of the respondent to avail substantial benefit. Therefore, the said order whereby the Superintendent has taken decision not to allow credit is clearly appealable. Hence, the order passed by learned Commissioner (Appeals) is legal and proper, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 3[Commissioner of Central Excise (Appeals)] [hereafter in this Chapter referred to as the 1[Commissioner (Appeals)]] 4[within sixty days] from the date of the communication to him of such decision or order: [ Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days.] [(1A) The Commissioner (Appeals) may, if sufficient cause is shown, at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing: Provided that no such adjour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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