2015 (3) TMI 1389 - AT - Central Excise

Tribunal reinstates dismissed appeal due to valid reason for non-appearance

The Tribunal recalled the final order dismissing appeal Nos. E/2462-2463/2008 due to the appellant's valid reason for non-appearance, following a ... Area Based Exemption - Payment of Education Cess and Secondary and Higher Education Cess - the cess can be paid through basic excise duty credit or not - N/N. 56/02-C.E. - HELD THAT:- On going through the registry’s records, it is seen that the regular matters listed on 24-6-2013 had been shifted to 25-6-2013 as a result of which it appears that the matter was listed on 25-6-2013 but the notice for the same was not issued - there was bona fide reason for non-appearance of the appellant on 25-6-2013. The appeal is recalled and these appeals are restored to their original number. Issues:Whether Education Cess and Secondary and Higher Education Cess can be paid through basic excise duty credit.Recall of the final order dated 25-6-2013 due to non-appearance of the appellant.Restoration of appeal Nos. E/2462-2463/2008.Analysis:The respondent, a manufacturing unit in Jammu & Kashmir availing exemption under Notification No. 56/02-C.E., was disputing the payment of Education Cess and Secondary and Higher Education Cess through basic excise duty credit. The Assistant Commissioner initially ruled against the respondent, but the Commissioner (Appeals) later reversed this decision. However, the Tribunal allowed the Revenue's appeal in Final Order No. 56841-56842/2013 due to the respondent's non-appearance, following a previous judgment.The Revenue's appeals were permitted based on a precedent set in Final Order Nos. A/999-1127/2012-EX(BR). Subsequently, restoration of appeals (ROAs) was filed for reconsideration. Despite earlier dismissal of RO applications, a new Miscellaneous Application was submitted for recalling the order dated 25-10-2013.During the hearing, the appellant's counsel argued that non-appearance on 25-6-2013 was due to a genuine misunderstanding regarding the hearing date, citing a similar case where a final order was recalled. The Revenue's counsel opposed the restoration of the appeal.After reviewing the submissions and records, the Tribunal acknowledged the appellant's valid reason for non-appearance on 25-6-2013, in line with the Supreme Court's ruling in J.K. Synthetic v. Union of India. Consequently, the final order dismissing appeal Nos. E/2462-2463/2008 was recalled, and the appeals were reinstated.The Tribunal directed the registry to list the restored appeal Nos. E/2462-2463/2008 along with other related appeals and cross-objections. Additionally, the Miscellaneous Application regarding appeal No. E/2463/2008 was disposed of in the final judgment.