Commissioner of C. Ex., Cus. and S.T., Vapi vs Guardian Plasticote Ltd.

Akil Kureshi, J.—Revenue is in appeal against the judgment of the CESTAT dated 7-5-2010 [2010 (19) S.T.R. 447 (Tribunal)] raising following questions for our consideration :

(a) Whether in the facts and circumstances of the case, the Tribunal has committed substantial error of law in holding that recommending committee, on whose recommendation, the appeal has been filed by the revenue, is not properly notified in the Official Gazette and therefore the appeal of the revenue is not maintainable?

(b) Whether in the facts and circumstances of the case, the Tribunal has committed substantial error of law in holding that since the Notification does not have the Commissioner of Central Excise, Vapi as one of the members of the Committee and there is no Commissionerate at Valsad, the Commissioner cannot exercise their powers conferred upon them by the statute?

(c) Whether in the facts and circumstances of the case, the Tribunal has committed substantial error of law in interpreting Notification No. 2/2010-C.E. (NX), dated 6-10-2010, and to conclude that the appeal filed by the revenue is not maintainable?

(d) Whether in the facts and circumstances of the case, the Tribunal has committed substantial error of law by ignoring the application for condonation of delay and not deciding the said application before passing impugned order dismissing the appeal of the revenue on the ground that the appeal is not filed in proper form of appeal?

From the record, it emerges that the Tribunal rejected the appeal of the Revenue as not properly instituted finding that the committee of Commissioners was not properly constituted as per law. Had this been the sole ground, we would have been inclined to consider the question further since prima facie it appears that the appeal was dismissed on technical ground. However, it is not necessary for us to conclude this issue in the present appeal because we find that the substantial question involved in the appeal pertains to eligibility of the manufacturer to avail Cenvat Credit on service tax paid on goods transport service for clearance of goods beyond the place of removal. This question has been answered by this Court in Tax Appeal No. 419 of 2010 and connected appeals decided on 6-4-2011 and the issue stands concluded against the Revenue. In that view of the matter, it is not necessary to entertain this appeal though the Tribunal dismissed the appeal on some other grounds. Tax Appeal is therefore, dismissed.