TMI Blog2017 (1) TMI 791X X X X Extracts X X X X X X X X Extracts X X X X ..... d on merits, as the condition precedent in Rule 57S(2)(C) Central Excise Rules, 1944 and/or Rule 3(4) of CCR 2001, Being taking of credit at the time of acquisition, being absent, the demand is not sustainable on merits The Ld. Commissioner (Appeals) have erred in refusing to go into the grounds, on merits, as in Revenue matters first appellate proceedings are an extension of the adjudication/assessment proceedings. Appeal allowed - decided in favor of assessee. - E/290 & 29112007-EX[SM] - A/71124-71125/2016-SM[BR] - Dated:- 11-11-2016 - MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) Shri Mayank Garg, Advocate for the Appellant (s) Shri L. Patra, Asstt. Commr. (A.R.) for the Department (s) Per: Anil Choudhary : The i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Quantity cleared (in qtls) 1 7636 28.07.2000 572 40.800 2 7742 21.07.2001 159 22.250 3 7836 05.08.2002 377 36.650 4 4030 05.08.2003 3969 62.00 5 4193 07.09.2004 65 110.40 On seeking clarification by Revenue as to whether they are clearing the used brass tubes for conversion, on payment of duty. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting to ₹ 2,50,116/- and ₹ 3,08,533/- under proviso to Section 11A of Central Excise Act, 1944. He also imposed an equal amount of penalty under proviso to erstwhile section 11 AC of Central Excise Act, 1944, read with Rule 13 of Cenvat Credit Rules (No.2) Rules, 2001 and Cenvat Credit Rules 2002. He also confirmed the chargeable interest upon the said amounts. 5. Being aggrieved, the appellant preferred Appeals before learned Commissioner (Appeals) who vide the impugned common order refused/ to decide the ground raised on merits, observing that the appellant had not raised the ground(s) on merit before the Adjudicating Authority and had only agitated the ground of limitation. Accordingly, he was pleased to reject the appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bad on merits, Accordingly, he prays for setting aside the impugned orders. 7. The learned AR. for Revenue relies on the impugned order. 8. Having considered the rival contentions, I hold that the Ld. Commissioner (Appeals) have erred in refusing to go into the grounds, on merits, as in Revenue matters first appellate proceedings are an extension of the adjudication/assessment proceedings. It have been so held by Hon'ble Supreme Court in CIT Vs. Kanpur Coal Syndicate. I further find that the allegation in the show cause notice is vague as there is no categorical allegation that the appellant had taken Cenvat Credit on the Brass Tubes removed during a particular financial year. Further, it is an admitted fact that the whole transac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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