2011 (1) TMI 67 - AT - Service Tax

Demand of duty and Penalty - Cenvat credit - appellant availed credit used commonly in manufacture of both dutiable and exempted products without maintaining separate accounts - department contended that appellant liable to pay an amount equal to 10% of the total price of the exempted goods charged at the time of clearance - Commissioner (Appeals) directed the appellant to deposit 50% of the duty and penalty - appellant submitted that the appellant had availed the credit wrongly but on their own have reversed the same - Commissioner (Appeals) has rejected the appeal on the ground of non-compliance with the stay order requiring them to deposit 50% of the duty and penalty - pre-deposit of duty penalty and interest waived and Stay Petition allowed unconditionally - matter remanded to Commissioner (Appeals) with direction to consider the issue on merit without insisting on any pre-deposit

Summary

Issues:
1. Availing CENVAT credit on inputs used for both dutiable and exempted products without maintaining separate accounts.
2. Demand of payment under Rule 6(3)(b) of the CENVAT Credit Rules, 2004.
3. Confirmation of demand, imposition of penalty, and subsequent appeal.
4. Applicability of subsequent reversal of wrongly availed credit.
5. Rejection of appeal due to non-compliance with the stay order.
6. Decision on the pre-deposit requirement and remand of the matter for consideration on merit.

Analysis:
1. The appellant, engaged in manufacturing Coated Calcite Powder and clearing both dutiable and exempted Calcite Powder, availed CENVAT credit on HDPE bags without maintaining separate accounts for inputs. The department contended non-compliance with Rule 6(2) of the CENVAT Credit Rules, 2004.

2. The original authority confirmed a demand along with interest and imposed penalties, which were upheld by the Commissioner (Appeals) who directed a deposit of 50% of the duty and penalty, leading to the rejection of the appeal due to non-compliance.

3. The appellant argued that they had reversed the wrongly availed credit voluntarily, citing precedents supporting the contention that subsequent reversal is sufficient. The Tribunal acknowledged the appellant's prima facie case based on High Court decisions.

4. Despite the rejection of the appeal by the Commissioner (Appeals) due to non-compliance with the deposit requirement, the Tribunal waived the pre-deposit condition unconditionally, considering the appellant's prima facie case.

5. As the issue was not decided on merit by the Commissioner (Appeals), the matter was remanded for a reconsideration without insisting on any pre-deposit, allowing the appellant a reasonable opportunity to present their case.

6. The Stay Petition and appeal were disposed of, emphasizing the importance of considering the appellant's case on merit without the pre-deposit requirement.