Per Justice S.N. Jha : This appeal on behalf of the assessee is directed against the order of the Commissioner (Appeals), Customs and Central Excise, Jaipur dated 13.8.2008 dismissing its appeal holding the same to be not maintainable. The learned Commissioner observed that the communication impugned 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/2006-07/2002 dated 27.10.2006 and 210 dated 06.11.2006 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 57S (2) of Central Excise Rules, 1944 also can not be acceded as there is no provision to provide depreciation under Cenvat Credit Rules, 2004.

You are therefore advised to remove Capital goods only on payment of the Cenvat credit taken on said capital goods."

2. The case of the appellant is that it is engaged in the manufacture of oxygen gas in two oxygen plants of 120 tonnes and 50 tonnes per day capacity at Khetri Nagar Dist. Jhunjhunu in the State of Rajasthan. The appellant availed modvat/cenvat credit on inputs and capital goods used in or in relation to manufacture of their dutiable final product. In 1994, it availed modvat credit of Rs. 86,20,506/- on various capital goods under permission granted by the jurisdictional Assistant Commissioner. Intending to set up another plant of 120 tonnes per day capacity falling under the tax jurisdiction of Nagpur Commissionerate, involving modvat/cenvat credit on shifting of major capital goods to the tune of Rs. 16,51,800/-, the appellant approached the jurisdictional Commissioner seeking permission to shift the plant/equipments as well as for transfer of accumulated cenvat credit lying in the excise records. Correspondence took place between the appellant and the authorities and, finally, the impugned communication was made in terms of which the appellant can remove the capital goods only on payment of cenvat credit taken on the said capital goods.

3. The appeal came up for hearing on the point of waiver of pre-deposit 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 proper on our part to consider the merits. The only point for consideration is whether the appeal before the Commissioner was maintainable.

5. It is true that there was no adjudication order as such, but it cannot be said that the impugned communication was a letter simplicitor. The appellant was informed in clear terms that it could remove the capital goods only on payment of cenvat credit taken on capital goods leaving no option to it but to pay the duty before removing the capital goods or, else, face consequences. Under Section 35 of Central Excise Act, appeal lies not only against a decision but also an order and we are inclined to think that where the order impugned determines the rights of the party or is likely to affect its