2009 (4) TMI 757 - AT - Central Excise

Summary

Issues involved:
1. Stay petition against waiver of pre-deposit of duty amount.
2. Applicant's claim of taking suo motu credit due to price variation.
3. Revenue's contention on applicant's ability to take credit.
4. Interpretation of Rule 12BB(2) of Central Excise Rules, 2002.
5. Prima facie case for waiver of pre-deposit and stay of recovery till appeal disposal.

Analysis:

1. The judgment concerns a stay petition challenging the waiver of pre-deposit of a duty amount. The Tribunal heard both sides and examined the records to determine the validity of the waiver.

2. The applicant claimed to have taken suo motu credit due to price variation. The Chartered Accountant representing the applicant explained that the duty amount was deposited based on the audit party's direction, following which supplementary invoices were issued to customers for the price adjustment.

3. The Revenue contended that the applicant could not claim credit as they had already collected the amount from customers. Reference was made to a decision by the Larger Bench in support of this argument.

4. The Tribunal analyzed Rule 12BB(2) of the Central Excise Rules, 2002, which allows adjustments for excess excise duty paid by Large Tax Payers' units for subsequent periods. Despite the JDR's strong objection, the Tribunal concluded that the applicant's second payment could be considered as excess excise duty, supporting the applicant's prima facie case for waiver.

5. Considering the circumstances, the Tribunal granted the waiver of pre-deposit and stayed the recovery of the amount until the appeal's final disposal. Additionally, the Tribunal directed the Registry to link this appeal with another related appeal filed by the department for consolidated disposal, ensuring that the stay order remains valid beyond the standard 180-day period.

This detailed analysis of the judgment highlights the key issues addressed by the Tribunal, including the applicant's claim, Revenue's objection, legal interpretation, and the decision regarding the waiver and stay of recovery pending appeal resolution.