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2023 (4) TMI 657 - AT - Central ExciseAppealable order or not - Letter written by the Superintendent directing, the assessee for not availing Cenvat Credit - The letter dated 25.09.2012 further stated that recovery action along with penal actions would be initiated if the respondent availed/ utilized the credit. - Appeal lies before Commissioner (Appeals) under Section 35 of the Act or not, against the letter or not - HELD THAT:- There is no dispute that appellant have sought allowance of credit in respect of input service attributed to dutiable goods which was very much in accordance with the Cenvat Credit Rules. The Superintendent vide letter dated 25.09.2012 denied the benefit claimed by the appellant-assessee. It is also stated in the said letter that in case of availment of credit which was claimed by the appellant, penal action shall be taken against the respondent. The said letter therefore is clearly a decision given by a proper officer. From the plain reading of Section 35, it is clear that any decision or order passed by a proper officer below the rank of Commissioner is appealable before Commissioner (Appeals). Accordingly there is absolutely no ambiguity in Section 35. The letter whereby the Superintendent has clearly held that respondent is not eligible to take credit, the said letter is clearly a decision against which appeal lies before Commissioner (Appeals) as per the strict interpretation of Section 35 - It is also noticed that if the department’s contention is accepted then the respondent left with no remedy against denial of substantial benefit claimed by the respondent and respondent is remediless. Reliance also placed by respondents in the case of USHA INTERNATIONAL VERSUS COMMISSIONER OF CUSTOMS (I) , MUMBAI [2017 (2) TMI 239 - CESTAT MUMBAI] where it was held that once an application of refund has been filed before the refund sanctioning authority, the said authority is duty bound to decide the refund application one way or the other. The refund application can either be rejected or allowed in part or in full. Thus, in the facts of the present case the letter written by Superintendent is a decision against which the appeal lies before Commissioner (Appeals) under Section 35 of the Act - the order of the Commissioner (Appeals) is absolutely legal and correct hence the same is upheld. Appeal dismissed.
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