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TMI Blog2008 (1) TMI 712X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the appeal before him was advisory in nature and no direction had been issued to the appellant. The impugned communication may be quoted in extenso at the outset as under :- "Please refer to your letters No. BGL/DEL/2006-07/202, dated 27-10-2006 and 210 dated 6-11-2006 on the above subject. 2. The matter was re-examined by the competent authority and I have directed to inform you that your request can not be acceded because the categorization of capital goods made by the Hon'ble Tribunals as 'used capital goods' which is different from 'capital goods removed as such' is under challenge and has not been finally accepted. 3. Your request for applying depreciation on capital goods, at the rate mentioned in the erstwhile Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osit of duty. Opposing the prayer, the Departmental Representative submitted that the appeal before the Commissioner was not maintainable as no cause of action had arisen to the appellant to approach the Commissioner and, on the same reasoning, therefore the present appeal too is not maintainable. According to the learned Departmental Representative, the impugned communication cannot be read as a decision or order within the meaning of Section 35 of the Central Excise Act and therefore, the appeal was/is not maintainable. 4. In view of the order we propose to pass we do not want to express any opinion on merit. The Commissioner has not gone into merits of the case and dismissed the appeal summarily, and therefore, it will not be prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arh, 2001 (130) E.L.T. 761, the communication stated that benefit available under Section 3A(1) of the Central Excise Act was not admissible. In Lumbini Beverages Pvt. Ltd. v. CCE, Patna, 2005 (192) E.L.T. 682, the communication intimated that the appellants are entitled to take Cenvat credit on the inputs installed subject to the verification of documents. In CCE, Belgaum v. Southern Ferro Ltd., 2006 (205) E.L.T. 695, rejection of the request of the appellant for re-determining annual capacity was informed by the impugned communication. In Smithkline Beecham Asia Ltd. v. CCE, Vishakhapatnam, 2002 (146) E.L.T. 307, the appellant was informed about the permission for release of subject goods seized subject to certain conditions. In Sidwal Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase. If on consideration of the facts and circumstances, it is found that the order communicated by the impugned letter is such as to affect the rights of the party, the appeal should be maintainable. We put a pointed question to the learned Departmental Representative that if the appeal is held to be not maintainable, what would be the remedy of the appellant. The law does not countenance a situation where the person is rendered remediless. In the circumstances of the case, the only option available to the appellant was to approach the Commissioner and the Commissioner was obliged to decide the matter on merit. The order of the Commissioner holding the appeal to be not maintainable cannot, therefore, be sustained. Accordingly, we set-aside ..... X X X X Extracts X X X X X X X X Extracts X X X X
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