2003 (8) TMI 391 - AT - Central Excise

Tribunal remands case for fresh decision due to legal flaws in condonation application.

The Tribunal set aside the impugned order due to legal flaws regarding the condonation application and absence of a specific order on condonation of ... Cenvat/Modvat - Delay in filing declaration Issues:Validity of allowing Modvat credit on specific goods, consideration of condonation application, absence of order on condonation of delay, pending appeal against a different order, silence of the department leading to acceptance of declaration.Analysis:1. Validity of Modvat Credit: The appeal questioned the validity of allowing Modvat credit on specific goods. The Revenue contended that the condonation application was submitted before the receipt of goods, which was not considered by the Commissioner (Appeals). The SDR argued that no order allowing condonation of delay was passed, hence the impugned order should be set aside for a fresh decision. On the other hand, the Counsel argued that the impugned order was valid as the condonation application was filed within the stipulated period. The Tribunal noted that the Commissioner (Appeals) did not consider the timing of the condonation application and lacked evidence to accept the typographical error argument. The order was deemed to suffer from legal infirmity due to the absence of a specific order on condonation of delay.2. Condonation Application: The Commissioner (Appeals) failed to address the condonation application's timing and the alleged typographical error in the date mentioned. The Tribunal emphasized that the absence of a specific order on condonation of delay created a legal flaw in the impugned order. It was highlighted that the A.C. should have decided on the prayer of the respondents, and the matter was still pending when the impugned order was passed. The Tribunal concluded that the impugned order needed to be set aside for a fresh decision by the Commissioner (Appeals) after considering all relevant aspects.3. Pending Appeal: The argument that the appeal filed by the respondents was also pending against a different order was dismissed as the items involved in that appeal were distinct from the present appeal. The Tribunal clarified that the Modvat credit amount and goods differed in the two appeals, emphasizing that the decision in the current appeal would not impact the outcome of the other appeal.4. Silence of the Department: The contention that the department's silence should imply acceptance of the declaration was rejected. The Tribunal highlighted that there was no provision in the Central Excise Act or Rules to presume acceptance based on the department's silence. Therefore, the argument was deemed misconceived and not acceptable in the legal context.In conclusion, the Tribunal set aside the impugned order to allow the Revenue's appeal by way of remand. The matter was directed to be sent back to the Commissioner (Appeals) for a fresh decision after considering all relevant points raised by both sides.