Pradeep Jain - Chartered Accountant

PJ/Case Laws/2009-10/27 DATE:18.01.2010

Case Laws

Prepared by: - CA. Pradeep Jain

Sukhvinder Kaur

And Deepak Mohnot

Central Excise Section:

Case: - Jolly Containers V/s Commissioner of Central Excise, Vapi

Citation: - 2010(249) E.L.T. 79 (Tri-Ahmd.)

Issue: - Whether Cenvat credit is deniable on Steel moulds which are manufactured by assessee himself and are captively used in manufacturing final product on the ground that the same are not shown in statutory records?

Brief Facts: - Appellants are engaged in the manufacture of plastic moulded articles and were availing credit on steel moulds. Such steel moulds were exempted from duty in terms of Notification No. 67/95. The Lower Authorities disallowed Cenvat credit on the steel moulds manufactured by assessee himself for being captively consumed in manufacturing of final products on the ground that the manufacture of the same was not shown either in RG-1 register or ER-1 returns.

Reasoning of Judgment: - The Tribunal held that the steel moulds are essentially required by the appellant for manufacturing plastic moulded articles. It was held that merely because the appellant had not shown the manufacture of the said moulds in their statutory records, cannot lead to an impractical and impossible conclusion that such moulds, which are essentially required by the appellant, where never manufactured by the assessee. No reasons exist to deny the benefit of Modvat credit to the appellant. Impugned orders set aside.

Decision: - Appeal allowed with consequential relief.

Comments:- This is important decision. We have come across that the same issue has been raised by audit in some units.

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Case: - Sam Turbo Industry Ltd V/s Commissioner of C. Ex., Coimbatore

Citation: - 2010(249) E.L.T. 82 (Tri-Chennai.)

Issue: - Whether utilization of Cenvat credit for payment of arrears of duty not permissible on the ground that it is against the proviso of Central Excise Rules, 2002?

Brief Facts: - The appellant-assessee has defaulted in the payment of duty for the months of Nov ‘06 & Dec ‘06 and Jan ’07. They utilize Cenvat account to pay the defaulted amount. On this Revenue raised objection to payment from credit account. The Demand raised by the Revenue was confirmed against the appellant. Accordingly, he has come before the Tribunal in appeal. The present application is filed for waiver of pre-deposit and for stay of recovery of amount demanded in SCN.

Appellant’s Contentions: - The appellant argued according to rules there is no prohibition in payment of arrears using the cenvat account and since they have paid a sum of approx. Rs. 50 lakhs, they should not be directed to deposit any further amount of Rs 20 lakhs as payment for default in Jan ‘o7 is included in the amount already paid although beyond the period of 30 days from the due date as provided in Rule 8(1). They have also relied upon the judgment given in Arjay Apparel Industries Ltd v/s CCE, Coimbatore [2008 (232) ELT 662 (Tri-Chennai)].

Respondent’s Contentions: - Respondent contented that according to Rule 8 (3A) of Central Excise Rules, if assessee defaults in payment of duty beyond thirty days from the due dates then as per sub-rule (4) of Rule 3 of Cenvat Credit Rules provided that assessee shall, pay excise duty for each consignment at the time of removal, without utilizing the Cenvat credit till the whole outstanding amount with interest thereon, and in the event of any failure it shall be deemed that such goods have been cleared without payment of duty and consequences and penalties also levied on the assessee. Therefore, the utilization of Cenvat credit in the payment of default amount is not justifiable as per the above ground. They also relied upon the provisions of Rule 3(4) of the CCR, 2004 to support their contentions.

It is further contended that the language of the Rules makes it very clear that the Cenvat credit cannot be utilised in case of default in payment of duty beyond 30 days which has been paid in PLA from May ’07 onwards.

Reasoning of Judgment: - After hearing both the sides, the Tribunal held that prima facie, the decision cited by the appellants are applicable to the facts of the present case. Therefore, pre-deposit is waived and stay of recovey of the amounts demanded is granted.

Decision: - Stay granted.

Comments:- This Rule 8(3) is proving very dangerous. If the assessee has not paid the duty consignment wise then department is saying that he will continue to pay from PLA as he has not paid the amount till date. If we look this from another angle, the person who has cleared the goods clandestinely is allowed to take the credit if demand is confirmed against him. But a manufacturer who has cleared under invoices but is not able to pay the duty due to financial hardship then he has to pay the duty from PLA only and is not allowed to utilize the Cenvat credit. It is very difficult position for a genuine manufacturer.

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Case: - Super Cassettes Industries Ltd v/s Commissioner of Central Excise, Noida

Citation: - 2010(249) E.L.T. 36 (Tri-Del)

Issue: - Whether the Cenvat credit is to be reversed on stock of inputs on the date when the finished goods became exempted?

Brief Facts: - Appellant were availing cenvat credit on inputs purchased for making their excisable finished goods. Notification No. 2/2004 dated 08.01.04 was issued exempting the finished goods of the appellants. Cenvat credit in respect of the cenvatable inputs were already utilized in terms of Rule 3(4) of CENVAT Credit Rules, 2004 by the assessee. Revenue demanded to reverse back the credit on inputs lying in the factory as according to Rule 14 Cenvat credit could be called back for recovery by the Adjudicating Authority.

Appellant’s Contentions: - The appellant contended that none of the inputs were questioned to be not Cenvatable. The input that was subject matter of Rule 3 entitled the appellant to take credit thereof. Further, in terms of Rule 3(4) read with Rule 3(1) the appellant has the right to utilize the Cenvat Credit earned? It was contended that when earning of cenvat credit was not questioned then mere exemption of the final product from excise, shall not, ipso facto empower the Authority to invoke Rule 14 to hold that the appellant had either taken cenvat credit wrongly or utilised the same wrongly since there was no question of charge at all to such extent in the show cause notice. They relied upon the decision of Larger Bench in case of H.M.T v/s CCE, Panchkula [2008 (232) ELT 217 (Tri-LB)] and prayed that just because goods have become exempted in terms of Notification No. 2/2004 dated 08.01.04, cenvat credit already utilised cannot be called back by a reversal entry. It is also submitted that the inputs which has already been converted into work in progress shall also not be subject matter of dispute to call back Cenvat credit element involved in the input therein. So also the cenvat credit involved in the finished goods lying in the factory for removal on the cut-off date of 08.01.04 cannot be called back for reversal.

Respondent’s Contentions: - The department contended that when the input lying in the factory on the cut-off date and which are not subjected to work-in progress, cenvat credit element in respect of that input is to be reversible. Balance credit, if any, available on record remaining unutilized is not to be utilized and is also to be reversed.

Reasoning of Judgment: - The Tribunal held that it is not the case before them that before the cut-off date, either the Cenvat credit has been taken wrongly or utilised wrongly in violation of Rule 3(1) and Rule 3(4). Cenvat credit being earned is allowed under law to be utilised for paying duty according to scheme of the law. Therefore, calling back of reversal of lawfully utilised cenvat credit would be irrational for no allegation of abuse of the scheme. Similarly the input awaiting process of manufacture having earned cenvat credit for the appellant by lawful invoices issued to him has permitted him to utilise such credit for discharge of duty liability. When mode of utilisation was not questioned and nothing remains on record as to wrong use or misuse of the scheme, calling for reversal of cenvat credit on the quantum of input physically present on the cut-off date, or such input partly translated into working progress and invisibly present in the finished goods cannot be called to be reversed. Since the right conferred under law having been exercised and denial of such right not being retrospectively affected by specific letters of law, the proceeding initiated by show cause notice appears to be absurd and shall not get sanction of the law.

Thus, the Tribunal held that on the afore-said reasoning, the unutilised cenvat credit existing on record as on 08.01.04 not being meant to be utilised, is never to be utilised during currency of the notification and same calls for reversal.

It was held that in view of mandate of Rule 14 to call back the cenvat credit without being wrongly taken or wrongly utilised, adjudication is unsustainable. Impugned order set aside. Appeal allowed except to the extent of unutilised cenvat credit existing on record on 08.01.04 is to be reversed.

Decision: - Assessee’s appeal allowed. Department’s appeal was dismissed.

Comments:- This is very good decision. The department does not agree on the same. Even they demand duty when the assessee shifts from Cenvat credit scheme to special procedure of Compounded levy scheme. In this case, there is no exemption but shifting from one procedure to another mode of payment of duty. Even the High Court has opined in favour of this contention but the department does not agree.

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Case: - Eicher Motors Ltd. V/s Union of India

Citation: - 1999 (106) E.L.T. 3 (SC)

Issue: - Whether Section 37 of the Central Excise Act, 1944 enable the authorities to lapse the credit balance lying in MODVAT account?

Brief Facts: - The Government introducing Rule 57F [read as 57F(4A)] of the Central Excise Rules, 1944, under which the credit lying unutilized on 16.03.95 with the manufacturers, was lapsed in the manner set out therein. The appellants had the Modvat credit of inputs which were already being used in the manufacture of the final products and the said final products were being cleared from the factory before 16.03.1995. The appellants have challenged the constitutional validity of the said Rule and have asked for quashing of the same.

Appellant’s Contentions: - The Appellant have raised the following grounds: - (1) Modvat credit lying in balance with the assessee as on 16.03.1995 represents a vested right accrued or acquired by the assessee under the existing law and such right is sought to be taken away by impugned Rule 57F (4A) and the Central Government has no powers under Section 37 of the Central Excise Act, 1944 or any other provision thereof to frame such a rule. (2) The impugned rule is arbitrary and unreasonable as the same has been framed without due application of mind to the relevant facts and it has been exercised on the basis of non-existent facts or which are patently erroneous. (3) Section 37 of the Act does not enable the Central Government to frame a rule enabling the lapsing of the balance in Modvat account and is therefore ultra vires the rule making power. (4) The rule is vitiated on the grounds of promissory estoppel and/or the doctrine of legitimate expectation.

Respondent’s Contentions: - Respondent submitted that the impugned Rule 57F(4A) is only a part of a scheme providing for giving concessions under the taxation enactment. The scheme need not be continued for all time to come and could be put to an end at any time and thus all that has happened is that the scheme which was available earlier is no longer available and, therefore, it is not open to contend that the scheme affects any vested right; and, that under the scheme it is only a mode of adjustment of taxes which were provided and there is no vested right accrued to the assessees. Thus a rule which merely lapsed does not give rise to the contention advanced on behalf of the petitioners and the withdrawal of concessions at any rate is not retrospective in effect to apply either the principle of promissory estoppel and/or the doctrine of legitimate expectation or even the rule that a vested right cannot be taken away. It is further made clear that a credit facility which is made available could not be allowed to perpetuate and the entire rule is in the form of a package and it makes it clear that there shall be no credit by rationalising the duty structure making it clear that addition of any input can be utilised upto a particular point of time. Certain anomalies were noticed in the implementation of the scheme inasmuch as, if the benefit of concession had been extended, though on the original item manufactured, a duty was liable to be paid and the ultimate product remains a duty free product and thus led to a situation where on the item originally manufactured which was used as an input was paid only in order to avoid payment of duty on the ultimate goods manufactured by them. In the original scheme introduced there was a nexus between the input and the output but the result of the application of that scheme led to a situation where such nexus was lost between the input and the output leading to a anomalous situation pointed out above. It is, therefore, submitted that it was permissible for the authorities to frame the rule in question which fell within the scope of Section of 37 of the Act.

Reasoning of Judgment: - The Hon’ble Supreme Court examined the pre-Budget 1995-96 as well as post-budget 19996 Modvat Scheme and concluded that credit accrued on inputs is less than the duty liable to be paid on the final products and thus the credit of duty earned on inputs gets fully utilised and some amount has to be paid by the manufacturer by way of cash. Prior to 1995-96 Budget, the excise duty on inputs used in the manufacture of tractors, commercial vehicles varied from 15% to 25%, whereas the final products were attracted excise duty of 10% or 15% only. The value addition was also not of such a magnitude that the excise duty required to be paid on final products could have exceeded the total input credit allowed. Since the excess credit could not have been utilised for payment of the excise duty on any other product, the unutilised credit was getting accumulated. The stand of the assessees is that they have utilised the facility of paying excise duty on the inputs and carried the credit towards excise duty payable on the finished products. For the purpose of utilisation of the credit all vestitive facts or necessary incidents thereto have taken place prior to 16-3-1995 or utilisation of the finished products prior to 16-3-1995. Thus the assessees became entitled to take the credit of the input instantaneously once the input is received in the factory on the basis of the existing scheme. Now by application of Rule 57F (4A) credit attributable to inputs already used in the manufacture of the final products and the final products which have already been cleared from the factory alone is sought to be lapsed, that is, the amount that is sought to be lapsed relates to the inputs already used in the manufacture of the final products but the final products have already been cleared from the factory before 16-3-1995. Thus the right to the credit had become absolute at any rate when the input is used in the manufacture of the final product. The basic postulate, that the scheme is merely being altered and, therefore, does not have any retrospective or retro-active effect, submitted on behalf of the State, does not appeal to us. It was further held that when on the strength of the rules available certain acts have been done by the parties concerned, incidents following thereto must take place in accordance with the scheme under which the duty had been paid on the manufactured products and if such a situation is sought to be altered, necessarily it follows that right, which had accrued to a party such as availability of a scheme, is affected and, in particular, it loses sight of the fact that provision for facility of credit is as good as tax paid till tax is adjusted on future goods on the basis of the several commitments which would have been made by the assesses concerned. Therefore, the scheme sought to be introduced cannot be made applicable to the goods which had already come into existence in respect of which the earlier scheme was applied under which the assessees had availed of the credit facility for payment of taxes. It is on the basis of the earlier scheme necessarily the taxes have to be adjusted and payment made complete. Any manner or mode of application of the said rule would result in affecting the rights of the assessees.

It was held that even from another angle, if on the inputs the assessee had already paid the taxes on the basis that when the goods are utilised in the manufacture of further products as inputs thereto then the tax on these goods gets adjusted which are finished subsequently. Thus a right accrued to the assessee on the date when they paid the tax on the raw materials or the inputs and that right would continue until the facility available thereto gets worked out or until those goods existed. Therefore, it becomes clear that Section 37 of the Act does not enable the authorities concerned to make a rule which is impugned herein. Therefore, it was held that the rule cannot be applied to the goods manufactured prior to 16.03.1995 on which duty had been paid and credit facility thereto has been availed of for the purpose of manufacture of further goods.

The Apex Court held that the said rule cannot be applied except in the manner indicated in this judgment above.

Decision: - Petitions allowed

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Case: - Commissioner of C. Ex., Surat v/s Lohia Polyester (P) Ltd

Citation: - 2009 (241) ELT 291 (Tri-Ahmd)

Issue: - Whether the time limit prescribed for sanctioning of refund claim will apply to refund of pre-deposit or not ?

Brief Facts: - Respondent-assessee pre-deposited certain amount during the course of investigation. The Commissioner (Appeals) held in favour of the respondent. Thereafter, the respondent filed for refund of the pre-deposit. The Adjudicating Authority granted the refund to the respondent but the same is appealed against by the revenue alleging that the refund is time barred and hence refund shouldn’t be allowed.

Appellant’s Contention: - The revenue contended that the refund application of pre-deposit filed by the respondent was filed after lapse of the time limit provided under the Act, i.e. the period of 1 year. One year has elapsed from the date of payment of duty and also the provisions as prescribed under Rule 233-B were not followed. Thus, the refund order is not valid and is liable to be set aside.

Reasoning of Judgment: - The Tribunal held that the refund of pre-deposit had become due to the respondent when the order was passed by the Commissioner (A), holding in their favour. As such, the respondent could not have asked for refund within a period of one year from the date of payment of duty, especially when the same was confirmed by the original Adjudicating Authority. It is well settled law that the limitation as provided in Section 11BB is not applicable to the refund of pre-deposit made by the assessee. No merits in Revenue’s appeal.

Decision: - Appeal rejected.

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Case: - Hyundai Motors India Ltd v/s Comm. of C. Ex., Chennai

Citation: - 2007 (220) E.L.T. 162 (Tri-Chennai)

Issue: - Whether assessee is eligible to avail the credit on the whole amount of excise duty paid on the inputs purchased from a 100% EOU?

Brief Facts: - Appellant had purchased some of his inputs from a 100% EOU unit and availed cenvat credit on the entire duty amount paid there on. But the Lower Adjudicating Authorities restricted the availment of cenvat credit to the amount equivalent to the additional duty of customs (CVD) which formed a part of the measure of the duty of excise paid by the EOU in terms of Notification No. 2/95-CE dated 04.0195.

Reasoning of Judgment: - The Tribunal held that the Lower Adjudicating Authorities had not realise that it was a duty of excise which was collected on the basis of duties of customs in terms of Notification No. 2/95-C.E. ibid read with the proviso to Section 3(1) of the Central Excise Act. Moreover, the issue was covered by the judgment given in M/s Indian Japan Lighting Ltd v/s CCE, Chennai [Final Order No. 462/2004, dated 8-6-2004 in Appeal No. E/633/2002], which has been relied upon by the appellant.

The Tribunal held that it is settled position of law that the duty paid by a 100% EOU on goods cleared to Domestic Tariff Area (DTA) is a duty of excise. The buyer of such goods is entitled to MODVAT/CENVAT credit of that duty. This is precisely the benefit taken by the Appellants. Hence, the impugned order is set aside.

Decision: - Appeal allowed.

Comments:- The Rule 3(7)(a) of Cenvat credit Rules have been amended from September 7, 2009. Now, the credit of CVD, SAD (if paid) and final education cess and SHE cess is available. But this rule is applicable when the duty is paid under serial number 2 of notification no.23/2003-C.E. dated 31.03.22003. There is no provision when the duty is paid under other serial numbers. This case will be applicable in such cases.

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Case: - Godrej Soaps Ltd v/s Commissioner of Central Excise., Mumbai

Citation: - 2004 (170) E.L.T. 102 (Tri-Mumbai)

Issue: - Whether penalty is imposable on availment of wrong Cenvat Credit? Whether interest on wrong availment of credit is to be calculated from the date of availment of credit or from the date entry was made in RG 23 A Part-II?

Brief Facts: - Appellants had availed cenvat credit of Basic Custom Duty and CVD paid on a Bill of entry which was not eligible for credit as these were not specified duties under the Modvat. When this fact was pointed to the appellants, they reversed the amount equivalent to the BCD. Revenue demanded penalty to be imposed equivalent to wrong availed credit and also interest thereon under the Rule 57-I(4) and 57-I(5) read with Section 11AB.

Reasoning of Judgment: - The Tribunal relied on the Apex Court’s decision in case of State of Madhya Pradesh v/s Bharat Heavy Electricals [1998 (99) ELT 33 (SC)] and held that for imposition of penalty, only provision for the same in the rules is not required, there has to be a consideration of the conduct and the circumstances in which the violation took place cannot be ignored.

The Tribunal held that from the impugned order it is clear that there has been not only a credit entry taken but the credits have been availed resulting in goods cleared being found to be without payment of duty. The plea of inadvertence and oversight as pleaded has been rightly rejected by the Adjudicator who has considered the status of the appellant. Penalty in this case has to be upheld. However, keeping in mind that the appellants had reversed the credits as soon as the Range officers pointed it out, the penalty in the circumstances is required to be reduced. The Tribunal held that an amount of Rs. 5 lakhs to be sufficient penalty in the facts and circumstances of the case.

On the issue of interest, the Tribunal held that interest is required to be paid by the appellant. However, the interest on the wrong availment of the credit is to be calculated from the date of the utilization of credit and not from the date on which entry was made in RG 23 A Part-II. Since, it is the utilisation that was not permissible.

Decision: - Appeal allowed partially.

Comments:- This issue is also decided by Punjab and High Court in case of Maruti Udyog Limited. The Hon’ble High Court held that when no harm is done to department by non utilizing the credit then interest is not payable. But the department has issued a circular saying that this decision relates to old rules and interest is payable under new rules. But the analogy drawn by this decision is applicable on old and new rules also. Even the appeal against this decision has been rejected by Apex Court. Thus, this decision has attained finality. We have also written an article on this issue which was published in Excise Law times. But the department does not agree.

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Service Tax Section:

Case: - Natraj and Venkat Associates v/s Asstt. Commr. of S. T., Chennai-II

Citation: - 2010 (17) S.T.R. 3 (Mad.)

Issue: - Whether refund of service tax paid mistakenly when the same was not payable, attract the provisions of limitation?

Brief Facts: - The petitioner-firm was rendering architectural services and was also registered with the service tax department. They received the payment in US dollars from their client in Sri-Lanka for construction of a building on 27.05.05. The petitioner mistakenly has paid service tax on the export of service and filed the refund of the same in the department on 20.09.2006. The Adjudicating Authority rejected the refund claim on the ground that refund claim was time barred and not in proper format. Appeal before the Commissioner (A) was rejected on the ground that even if the tax was collected without the authority of law, a claim for refund cannot be entertained beyond the period specified in Section 11B. Therefore, the petitioner is before the High Court seeking a Mandamus, directing the respondent to refund the service tax paid by them under a mistake of law.

Appellant’s Contentions: - Petitioner relied upon the decision of Union of India V/s ITC Ltd [1993 (67) ELT 3 (SC)] and of CCE, Madras v/s Indo-Swiss Synthetic Gem Manufacturing Co. Ltd [2003 (162) ELT 121] and contended that when a payment is not required by law was made, this Court has power to order refund.

Respondent’s Contentions: - Respondent relied upon the judgment of the Apex Court in Union of India v/s Kirloskar Pneumatic Company [1996 (84) ELT 401 (SC)] wherein the Apex Court had set aside an order of the Bombay High Court, which directed the Assistant Commissioner of Excise, not to reject a claim for refund on the ground of limitation.

Reasoning of Judgment: - The High Court relied upon the judgments given in Chhotabhai Jethabhai Patel and Co. v/s Union of India [1999 (110) ELT 118 (SC)], D. Cawasji & Co. v/s State of Mysore [1978 (2) ELT (J154) (SC)] and in Union of India v/s ITC Ltd [1993 (67) ELT 3 (SC)] and held that if what was paid cannot be taken to be duty of excise, the bar of limitation under Section 11B(1) cannot be applied. This is on account of the fact that the bar of limitation prescribed under Section 11B (1) applies only to “any person claiming refund of any duty of excise and interest”. Therefore, the petitioner’s claim for refund can be entertained by this Court, since there is no dispute about the fact that no service tax was payable by the petitioner and as a corollary, what was paid by them was not service tax.

The High Court further held that from the documentary evidence on record, it is clear that there was no unjust enrichment. Therefore, even on merits, the petitioner is entitled to seek refund. Direction given to respondent to make a refund of the amount payable to the petitioner within stipulated time.

Decision: - Writ petition allowed.

Comments:- Very good decision.

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Case: - K.V.R. Construction V/s Comm. Of Central Excise, Bangalore

Citation: - 2010 (17) S.T.R. 6 (KAR)

Issue: - Whether the time limit mentioned under Section 11B of the Central Excise Act, 1944 is applicable in the case of deposit?

Brief Facts: - The petitioner has constructed civil structure for organization mentioned in Circular no. 80/10/2004 S.T. dt 17.09.04 for which he was not liable to pay service tax but the same was paid by him under the misunderstanding of law. When the refund of the same was claimed by him, the Adjudicating Authority held that the petitioner was not liable to pay service tax in respect of civil structures constructed for and on behalf of the said organization put to use for education, religious, charitable, health, sanitation and philanthropic purpose, and not for the purpose of profit and treated as a deposit at the hands of the government. The Adjudicating Authority however, disallowed the same on the ground that refund has been time barred as per Section 11B of the Central Excise Act, 1944.

Reasoning of Judgment: - The High Court held that the sums deposited by the petitioner was held to be deposit and not as a duty, therefore, there was no necessity for the petitioner to have made a claim invoking Section 11B of the Act for refund. The Assistant Commissioner by a misconception of law assumed that the section 11B of the Act also applied on the deposit with Government. Hence, the impugned order to the extent it relates to denial of the claim for refund is unsustainable and is quashed.

Decision: - Petition allowed accordingly.

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Case: - Premchand Gokaldas v/s Commissioner of Service Tax, Ahmedabad

Citation: - 2010 (17) S.T.R. 36 (Tri-Ahmd)

Issue: - Whether condonation of delay is necessary when the appeal was filed within the time limit but with the wrong authority?

Brief Facts: - In the matter of appellant, the Original Adjudicating Authority had passed an order on 22.10.07. The appellant filed an appeal against the said order on 10.12.07. Though the appeal was to be filed with the Commissioner (A) but by mistake the said appeal was filed in the office of joint commissioner of service tax as both the offices were on the same floor. Thereafter, when they came to know about the mistake, they requested vide letter, to the said appellate authority to call for the appeal papers from the said office. They also wrote to the office of the Joint Commissioner of Service Tax to forward the appeal papers to the office of the Commissioner (Appeals). But the papers were not forwarded. The appellants placed a fresh copy of the appeal memo before the appellate authority. The Commissioner (Appeals) dismissed the appeal filed by the assessee on the ground of limitation by holding that he does not have powers to condone the delay beyond the period of 30 days. Hence, the appellant has come before the Tribunal.

Appellant’s Contentions: - The appellant argued that the appeal was addressed to Commissioner (Appeal), the same was filed in the office of Joint Commissioner of Service Tax. This was happen due to the mistake of the person depositing, since the office of the both authority in the same building. Since the appeal was filed within limitation but to a wrong office, there was no requirement for condonation of delay. Reliance was placed on the judgment given in Maruti Udyog Limited v/s Commissioner of Customs, Kandla [2009 (92) RLT 58 (CESTAT-Ahmd)].

Reasoning of Judgment: - The Tribunal held that the appeal was in fact filed within time but was submitted in the wrong office. In the afore-cited cases, the Tribunal observed that various precedent decisions laying down that the time spent before the wrong forum should not be taken into consideration while calculating the limitation. The appellants had admittedly been pursuing at each level for transfer of the appeal papers to the right forum. It was further held that it was equally the duty of the Deputy Commissioner, before whom the appeal was wrongly filed, to transfer the papers to the right office. If that would have been done, there would have been no question of any delay requiring any condonation. As the appeal was filed within time, there was no delay requiring any condonation and as such, the question of Commissioner (A) powers to condone or not to condone the delay beyond 30 days did not arise. Matter remanded to the Commissioner (A) for decision on merits. Impugned order set aside.

Decision: - Appeal allowed by way of remand.

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