Commissioner of Central Excise, Vs. Vithalrao Vikhe Patil and Ssk Ltd.

Commissioner of Central Excise, vs Vithalrao Vikhe Patil and Ssk Ltd.

Type Court Judgment Court Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai Decided Nov 02, 2001

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Citation: sooperkanoon.com/26535
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Decided On: Nov 02, 2001
Subject: Excise

Case Summary

AI-generated summary - not the official court judgment text.

Excise

Key legal issue: Excise

Parties & Advocates

Appellant / Petitioner

Commissioner of Central Excise,

Respondent

Vithalrao Vikhe Patil and Ssk Ltd.

Legal References

Reported In: (2002)(145)ELT182Tri(Mum.)bai

Excerpt

.....to them nor any personal hearing has been granted to them. in view of this letter, the letter issued by the superintendent asking the appellants to reverse the credit is set aside." the department has appealed this order.2. the ground in the appeal is that the letter of the superintendent was not a decision or order against which an appeal lies to the commissioner (appeals).3. the counsel for the respondent relies upon the judgment of the tribunal in s.m.energy teknik and electronics ltd. v. cce 4. the latter decision is entirely irrelevant to the facts of this case. the other decision provides that a communication may amount to an appealable order if it satisfies the criteria laid down by the supreme court in jaswan sugar mills v. laxmi chand air 1963 sc 677. i am entirely unable to see how the letter of the superintendent satisfies any of these criteria. it merely asked the manufacturer to reverse the credit and told him that if he did not do so, action under the rules will be initiated against him. that letter can, by no means, to be construed to be an order of adjudication. all it says is that if the credit is not debited, action in law will be initiated. the letter in question therefore falls far short of an adjudication order. it can perhaps be argued that it is in the nature of a notice. i am however not concerned with that. since it is not in the nature of an appealable order, no appeal would have been filed against that letter.5. the counsel for the respondent contends that if that is the case, he is entitled to recovery of credit which he reversed on the basis of this letter. i am however not concerned with that aspect. that is not the issue before me.

Full Judgment

1. Following some objection raised by the audit, an communicated to him, the Superintendent having jurisdiction over the factory of the respondent, wrote to it asking to reverse modvat credit of Rs. 39,575/- which it stated was wrongly taken. He issued a reminder and subsequently, a letter, which is the subject matter of this appeal. In that letter, he has once again requested for reversal of the credit, and said, "if the amount of 39,575/- is not debited within two days from the receipt of this letter action under C.Ex. Rules will be initiated against you which may please be noted." The assessee appealed this order to the Commissioner (Appeals). The Commissioner (Appeals) said "The appellants have been asked to reverse the credit in violation of the principles of natural justice as no show cause notice under Rule 57U has been issued to them nor any personal hearing has been granted to them. In view of this letter, the letter issued by the Superintendent asking the appellants to reverse the credit is set aside." The department has appealed this order.

2. The ground in the appeal is that the letter of the Superintendent was not a decision or order against which an appeal lies to the Commissioner (Appeals).

3. The counsel for the respondent relies upon the judgment of the Tribunal in S.M.Energy Teknik and Electronics Ltd. v. CCE 4. The latter decision is entirely irrelevant to the facts of this case. The other decision provides that a communication may amount to an appealable order if it satisfies the criteria laid down by the Supreme Court in Jaswan Sugar Mills v. Laxmi Chand AIR 1963 SC 677. I am entirely unable to see how the letter of the Superintendent satisfies any of these criteria. It merely asked the manufacturer to reverse the credit and told him that if he did not do so, action under the rules will be initiated against him. That letter can, by no means, to be construed to be an order of adjudication. All it says is that if the credit is not debited, action in law will be initiated. The letter in question therefore falls far short of an adjudication order. It can perhaps be argued that it is in the nature of a notice. I am however not concerned with that. Since it is not in the nature of an appealable order, no appeal would have been filed against that letter.

5. The counsel for the respondent contends that if that is the case, he is entitled to recovery of credit which he reversed on the basis of this letter. I am however not concerned with that aspect. That is not the issue before me.

Same Court & Year Customs Excise and Service Tax Appellate Tribunal CESTAT Mumb... Same Parties Commissioner of Central Excise, vs Vithalrao Vikhe Patil and ... Same Subject Excise