TaxTMI 
TaxTMI 
TaxTMI 
2010 (2) TMI 455
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....n the assessee, besides charging interest on the aforesaid amount of duty. The order of adjudication was received by the party on 3-9-2007. They filed an appeal with the Commissioner (Appeals) against the said order on 5-2-2008. Along with the appeal, they also filed an application for condonation of the delay of the appeal. The learned Commissioner (Appeals) condoned the delay under the proviso to section 85(3) of the Finance Act, 1994. The appellate authority, further, set aside the order of the lower authority on merits. The present appeal of the revenue is directed against the decision of the Commissioner (Appeals). 2. One of the main grounds raised in this appeal is that the lower appellate authority did not have power to condone the ....
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....s pointed out that the CENVAT Credit Rules, 2004 were made by the Government in exercise of the powers vested under these provisions of law. It is further submitted that, where a provision of the CENVAT Credit Rules, 2004 is invoked by or against a person who is a manufacturer of excisable goods and also a provider of output service, the matter would get covered under the provisions of the Central Excise Act or under the provisions of the Finance Act, 1994 for purposes of quasi-judicial proceedings, depending on the nature of utilisation of CENVAT credit. Elaborating the point, the SDR submits that, where a manufacturer of excisable goods avails and utilises CENVAT credit on input service for the purpose of payment of duty of excise on thei....
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.... Limitation Act was not applicable to belated appeals filed under section 35 of the Central Excise Act and, further, that the appellate authority functioning under section 35 of the Act had no power to allow any appeal to be presented beyond a period of 30 days from the date of expiry of the normal period of limitation (60 days). On the above basis, the learned SDR prays for setting aside the impugned order and allowing this appeal. 4. The learned counsel for the respondent points out that the appeal against the order of adjudication was filed in ST4 Form which was prescribed for Service Tax appeals. It is also submitted that an officer of the department was also present when that appeal was heard by the Commissioner (Appeals). That office....
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....t, 1994 inasmuch as the CENVAT credit in question was taken on an input service. Counsel has also referred to a decision of this Tribunal in the case of Simon Bros. (P.) Ltd. v. Commissioner [Order Nos. 1509-10/2002-WZB/C-II dated 17-5-2002] wherein section 85 of the Finance Act was held to be applicable to a case against the Assistant Commissioner's order on Service Tax and sections 35 of the Central Excise Act was held to be inapplicable to the case. 5. After considering the submissions, I think that there can be no iota of doubt about the legal status of the appeal considered by the lower appellate authority. Learned counsel stated that the respondent was ignorant of law and hence chose to invoke the provisions of the Finance Act, 1994 ....
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....AB of the Central Excise Act. If the credit was taken or utilised wrongly by a provider of output service, it would be recovered with interest from him under sections 73 and 75 of the Finance Act, 1994. In the instant case, undisputedly, the credit in question was taken and utilised by the respondent as a manufacturer of excisable goods. The respondent was not a provider of output service. Obviously, only sections 11A and 11AB of the Central Excise Act could be invoked against them for recovery of the credit with interest on the ground of wrong utilisation. This is what was precisely done in this case. This case, therefore, would occupy the realm of Central Excise law. Accordingly, the order passed by the Assistant Commissioner was only ap....
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....d the permissible period provided under the Statute. The period up to which the prayer for condonation can be accepted is statutorily provided. It was submitted that the logic of section 5 of the Indian Limitation Act, 1963 (in short the 'Limitation Act') can be availed for condonation of delay. The first proviso to section 35 makes the position clear that the appeal has to be preferred within three months from the date of communication to him of the decision or order. However, if the Commissioner is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, he can allow it to be presented within a further period of 30 days. In other words, this clearly shows that the ap....