2014 (7) TMI 1138 - HC - Central Excise

Waiver of pre deposit - Levy of Clean Energy Cess - Assessee contends that alleged quantity of raw coal nor coal after its processing in the washery located within the mine, was not despatched to any destination beyond the coal mine, warranting levy and demand of Cess - Held that - In case the appeal is likely to be allowed, why should the assessee be saddled with huge amount at that stage. - when majority of Cess has been deposited and either view is possible then the Tribunal should have allowed the application of the Assessee after safeguarding the interest of the Revenue. - interest of Revenue may be safeguarded by requiring the Assessee to give security (other than cash or bank guarantee) of the entire amount of the remaining amount of Cess, penalty and interest. - Decided conditionally in favour of assessee.

Summary

Issues:
Appeal against order of Tribunal for exemption to pre-deposit clean energy cess; Consideration of prima facie case in exemption application.

Analysis:
The judgment involves an appeal under section 35G of the Central Excise Act, 1944, against the order of the Customs, Excise and Service Tax Appellate Tribunal, New Delhi, regarding exemption to pre-deposit the clean energy cess (Cess). The Tribunal partly dismissed the application of M/s. Jindal Steel & Power Limited for exemption and rejected the review/recall of the order while correcting clerical errors. Two show cause notices were issued by the Commissioner, Central Excise, Raipur, requiring the Assessee to show cause regarding the Cess under the Clean Energy Cess Rules, 2010. The Assessee deposited a sum under protest and after considering the reply, the Commissioner confirmed the notices. The Assessee filed an appeal against this order and applied for exemption of pre-deposit of tax, which was partly allowed by the Tribunal. The Assessee then filed an application for modification of the order, which was rejected, leading to the present appeal.

The judgment delves into the dispute regarding whether a prima facie case should be considered while looking into the application for exemption to pre-deposit tax. Various decisions have taken different views on this matter, with some emphasizing the importance of considering a prima facie case to prevent burdening the assessee with a large amount if the appeal is likely to be allowed. However, in the present case, the Tribunal found that the dispute was regarding the interpretation of the Rules and that either view contended by the Assessee or the Revenue was possible. Since the majority of the Cess had already been paid, and either view was plausible, the Tribunal should have allowed the Assessee's application while safeguarding the interest of the Revenue. To protect the Revenue's interest, the judgment suggests requiring the Assessee to provide security, other than cash or bank guarantee, for the remaining amount of Cess, penalty, and interest. If the Assessee complies by depositing the security within a month, further proceedings based on the adjudication order shall remain stayed. The tax appeal is disposed of with these observations.