2004 (7) TMI 175 - AT - Central Excise

Summary

Issues involved:
1. Timeliness of filing appeals against the order of the Commissioner of Central Excise (Appeals).
2. Condonation of delay in filing Appeal No. 140/2000.
3. Justifiability of denial of exemption to the assessee in respect of Brush Shaft Fabrication Assembly and Washer.

Issue 1: Timeliness of filing appeals against the order of the Commissioner of Central Excise (Appeals):
The appeals filed by the assessee were directed against an order passed by the Commissioner of Central Excise (Appeals) who dismissed two appeals as time-barred. The appellate authority was empowered to condone delay up to three months, but Appeal No. 360/97 was filed beyond the condonable period and was dismissed as time-barred. It was held that the Commissioner (Appeals) has no power to condone any delay beyond the maximum period prescribed. Therefore, Appeal No. E/667/2003 was dismissed. However, Appeal No. 140/2000 was delayed by only two days and was within the condonable period, but the delay was not condoned due to the lack of an application. The delay was eventually condoned, and Appeal No. E/668/2003 was considered on merits.

Issue 2: Condonation of delay in filing Appeal No. 140/2000:
The delay of two days in filing Appeal No. 140/2000 was condoned after the appellants provided reasons for the delay. It was emphasized that the appellant should make an application for condonation of delay, stating the reasons for the delay. The dismissal of the appeal as time-barred was overturned, and the appeal was considered on merits.

Issue 3: Justifiability of denial of exemption to the assessee in respect of Brush Shaft Fabrication Assembly and Washer:
In the case of Brush Shaft Assembly, the benefit of "Nil" rate of duty was claimed by the assessee, but the Commissioner (Appeals) upheld the department's view that the classification of the item had not been finalized. The appellants argued that the benefit of exemption cannot be denied on grounds not raised in the show cause notices. The Tribunal held that the appellants were entitled to the benefit of exemption based on earlier orders in the same assessee's case. Regarding Washer, the denial of SSI exemption was deemed unsustainable as the lower appellate authority's grounds were beyond the scope of the show cause notice. The Tribunal held that the denial of SSI exemption was not justified, and the demand of duty on the Washers was set aside.

In conclusion, the appeals were allowed, and the impugned order was set aside to the extent related to the denial of exemption to the assessee in respect of Brush Shaft Fabrication Assembly and Washer.