Page 88 - ELT_3rd_1st May 2020_Vol 372_Part

310 EXCISE LAW TIMES [ Vol. 372

tioner questioning propriety of order-in-original misreading Tribunal judg-
ment in Unison Metals Ltd. [2006 (204) E.L.T. 323 (Tribunal-LB)] and overlook-
ing explanation to Rule 6(3)(c) of Cenvat Credit Rules, 2004, applicable in pre-
sent case - HELD : Assessee adopted scheme under said Rule 6(3)(c) ibid to
which first Explanation to sub-rule also attracted - Evidently, adjudicating au-
thority did not refer to first Explanation to Rule 6(3) ibid while passing rele-
vant order - Adjudicating authority committed error of jurisdiction in failing
to appreciate extent to which dictum in Unison Metals Limited (supra) bound
adjudicating authority - Order of adjudicating authority set aside - Amount
equivalent to 10% value of exempted goods recovered from customers but not
deposited with Department - Amount realised from purchasers of goods to be
deemed to have been paid to excise authorities upon Cenvat credit account of
assessee being debited, hence no question of assessee being liable to pay any
penalty or interest - Rule 6(3)(c) of Cenvat Credit Rules, 2004. [paras 15, 16, 18]
Petition allowed
CASE CITED
Unison Metals Ltd. v. Commissioner — 2006 (204) E.L.T. 323 (Tribunal-LB)
— Followed ............................................................................................................ [Paras 11, 12, 13, 14, 16]
DEPARTMENTAL CLARIFICATIONS CITED
C.B.E. & C. Circular, dated 12-11-2001 ................................................................................................ [Para 12]
C.B.E. & C. Circular, dated 16-5-2008 ........................................................................................... [Paras 12, 14]
REPRESENTED BY : S/Shri J.P. Khaitan, Senior Advocate, Siddartha Das,
Malay Seal and Ms. Anupa Banerjee, Advocates, for
the Appellant.
S/Shri Somnath Ganguli and Bhaskar Prasad
Banerjee, Advocates, for the Respondent.
[Order]. - The Court : The assessee questions the propriety of an order-
in-original on the ground that it completely misread a judgment of the Tribunal
that was binding on it and it failed to notice an explanation to a provision that
was applicable in the present case.
2. In short, the case made out by the appellant assessee is that the adju-
dicating authority acted in error of jurisdiction in passing the order impugned.
3. The order of the adjudicating authority was amenable to appeal.
However, the Commissioner (Appeals) could not entertain the appeal since it
was filed beyond the period permitted and the additional period of 30 days as
envisaged by the appellate provision. The appellate authority held that in view
of the wording of the provision, the appellate authority had no jurisdiction to
condone any delay beyond 30 days after the expiry of the usual period permitted
to carry an appeal. Such order of the Commissioner (Appeals) was carried before
the Tribunal. However, the appeal was withdrawn.
4. It is the submission of the appellant that since the Commissioner
(Appeals) had declined to entertain the appeal on merits as it had been filed be-
yond the period of limitation and the further period within which the appeal
could be entertained, there was no grievance against the order of the Commis-
sioner (Appeals) that could be pursued before the Tribunal in the further appeal
and, hence, such appeal was withdrawn.
EXCISE LAW TIMES  1st May 2020  88