2011 (9) TMI 306 - AT - Central Excise

Benefit of Notification No.39/2001-CE, dt.31.7.2001 - waiver of pre-deposit of amounts - disposal of the appeal for non-compliance of provisions of Section 35F of Central Excise Act, 1944 - utilized the entire CENVAT Credit taken by them and pay balance amount through account current and such amount which have been paid through PLA are permitted to be re-credited - benefit of availment of CENVAT Credit under CENVAT Credit Rules, 2004 seems to be optional and not compulsory which was not considered by lower authorities in proper perspective - Hence,set aside the impugned order - remand the matter back to Commissioner (Appeals) to reconsider the issue afresh - appeals are allowed by way of remand

Summary

Issues:
1. Stay petitions for waiver of pre-deposit of confirmed amounts due to non-compliance with Section 35F of Central Excise Act, 1944.
2. Benefit of Notification No.39/2001-CE, dt.31.7.2001 regarding re-credit to assessees in Kutch area.

Analysis:
1. The Tribunal considered Stay Petitions filed for waiver of pre-deposit of confirmed amounts due to non-compliance with Section 35F of Central Excise Act, 1944. The appeals were to be disposed of at this stage. The applications for waiver were allowed, and the appeals were taken up for disposal.

2. The main issue revolved around the benefit of Notification No.39/2001-CE, dt.31.7.2001, concerning re-credit to assessees in the Kutch area. The lower authorities held that the appellant did not take credit on inputs, violating provisions. However, the Tribunal observed that the benefit of availing CENVAT Credit under CENVAT Credit Rules, 2004 appeared optional, not mandatory. This aspect was not considered by the lower authorities. Therefore, the Tribunal set aside the impugned order, without expressing any opinion on the case's merits, keeping all issues open. The matter was remanded back to the Commissioner (Appeals) for reconsideration, without insisting on the amount as pre-deposit, and to reach a conclusion following the principles of natural justice.

In conclusion, the appeals were allowed by way of remand for further consideration by the lower authorities.