Appealable communication doctrine applied where a condition on removal of capital goods affected civil rights and required fresh merits review.

A communication directing removal of capital goods only on payment of Cenvat credit was treated as more than a mere advisory letter because it imposed a clear operative condition affecting civil rights. Its appealability depended on its effect in the facts of the case, and where refusing an appeal would leave the assessee without an effective remedy, the communication was amenable to appeal under Section 35 of the Central Excise Act. The Commissioner's view that the appeal was not maintainable was unsustainable, and the matter was remanded for fresh adjudication on merits in accordance with law.

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Issues: Whether a communication directing the assessee to remove capital goods only on payment of Cenvat credit constituted an appealable order or decision under Section 35 of the Central Excise Act so as to make the appeal before the Commissioner maintainable.

Analysis: The communication was not a mere advisory letter, because it conveyed a clear direction that the assessee could remove the capital goods only after paying the Cenvat credit taken on those goods. A communication of this kind, if it determines or affects civil rights, cannot be treated as a letter simpliciter. The availability of an appeal depends on the effect of the communication in the facts of the case, and where refusal to entertain the appeal would leave the party without an effective remedy, the communication must be treated as one amenable to appeal.

Conclusion: The appeal before the Commissioner was maintainable, and the order dismissing it as not maintainable was unsustainable.

Final Conclusion: The matter was sent back to the Commissioner for fresh adjudication on merits in accordance with law.

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