( 1 ) TRIBUNAL is correct in holding that two pleas mentioned in Ground 2 and Grounds 5 to 9 in the applicants appeal before it were not pressed by the applicant (Para 6 and 7 of the Tribunal s order m/80/01/nb (SM ).)

( 2 ) APPEAL before the Commissioner (Appeals) should be treated to have been filed in time treating the date 16/12/97 as the date of filing the same as it was filed in the office of the Assistant Commissioner Central excise, Div -V: an officer sub-ordinate to commissioner (Appeals) in so far as appeals are concerned - on that date (Para 2 of Tribunals final order no. A/2180/00-NB (SM) dt. 17/10/2000 ).

( 3 ) THE question on merits regarding correctness of availing the modvat credit on capital goods by the applicant was validly before the Tribunal, on the basis of the doctrine of merger, and the Tribunal was duty bound to deal with this question in the appeal before it, even if the appeal before Commissioner (Appeals) was treated to be barred by time as has been held by the authorities below. (Para 4 of tribunal s order no. M/80/01 dt. 09/03/2001 and para 2 of Tribunal s final order no. A/2180/00-NB (SM)dt. 17/10/2000 ).

( 4 ) TRIBUNAL has the power to reca