2014 (4) TMI 1083 - HC - Central Excise

Condonation of delay - Pre deposit done though CENVAT Credit - Held that - The delay in depositing the amount through Cenvat credit account is condoned. The Tribunal may first decide the question whether the amount of Rs. 40,00,000/- can be deposited through Cenvat credit account or not. - amount mentioned in the order 13-12-2010 can be paid through Cenvat credit account, then the appeal of the Assessee will not be dismissed merely on the ground that this amount was deposited with delay. - Matter remanded back - Decided in favour of assessee.

Summary

Issues:
Tax appeal against the order dated 1-8-2011 passed by the Central Excise Service Tax Appellate Tribunal, New Delhi for non-compliance of the order dated 13-12-2010 by M/s. Bhagwati Power & Steel Limited.

Analysis:
1. Show Cause Notice and Adjudication: A show cause notice was issued to the Assessee regarding disallowance of Cenvat credit. The Adjudicating Officer disallowed the credit, ordered recovery with interest, and imposed a penalty. The Assessee appealed to the Tribunal.

2. Application for Waiver: The Assessee filed an application for waiver of pre-deposit, which was decided on 13-12-2010. The Assessee was required to deposit a sum of Rs. 40,00,000 within 10 weeks to stay the AO's order.

3. Dismissal of Appeal: The Assessee failed to deposit the required sum, leading to the dismissal of the appeal on 1-8-2011. This dismissal prompted the tax appeal.

4. Delay in Filing Tax Case: The Assessee filed an application to condone the delay in filing the tax case, which was granted. The case was heard on merits.

5. Depositing the Amount: The Assessee eventually deposited Rs. 40,00,000 on 31-3-2013 through the Cenvat credit account, which was disputed by the Department.

6. Dispute over Payment Method: The Department argued that the amount should have been deposited in cash, not through the Cenvat credit account. The Assessee contended that if the appeal was dismissed, the Excise duty could be paid through the Cenvat credit account.

7. Decision on Payment Method: The Court decided not to rule on whether the amount could be paid through the Cenvat credit account, leaving it to the Tribunal to decide first.

8. Condoning Delay in Deposit: The delay in depositing the amount through the Cenvat credit account was condoned, and the Tribunal was directed to decide on the payment method.

9. Appeal Outcome: The order dated 1-8-2011 was set aside, and the matter was remanded to the Tribunal for further proceedings. The Assessee was instructed to appear before the Tribunal with a copy of the order for a decision in accordance with the law.