2011 (9) TMI 312 - AT - Central Excise

Delayed payment of Central Excise duty - contravention of the provisions of Rule 8 Appellant utilized CENVAT Credit to pay Central Excise duty - issued notice under section 11 and attached to the plant and machinery for recovery of duty since the failure is on the part of the Appellant to pay duty and CENVAT Credit should not have been utilized - Show Cause Notice under Section 11A is required to be issued in the case of default under rule 8(3A) - no need for Appellant to make any pre-deposit for hearing of the Appeal - Commissioner(Appeals) has not decided the issue on merits we allow the Stay Petition, set aside the impugned order and remand the matter to Commissioner(Appeals)

Summary

Issues: Delayed payment of Central Excise duty, utilization of CENVAT Credit, attachment of plant and machinery, requirement of pre-deposit for Appeal, issuance of Show Cause Notice under Section 11A, interpretation of Rule 8(3A), decision based on High Court ruling.

In this case, the Appellant faced issues regarding the delayed payment of Central Excise duty in 2008 and the utilization of CENVAT Credit to pay the duty, resulting in a balance due to the department. Central Excise officers attached the plant and machinery for recovery of duty due to the Appellant's failure to pay. The Appellant filed an Appeal against the attachment order, but the Appeal was dismissed by the Commissioner(Appeals) for not depositing the required amount for hearing. The Appellant argued that a Show Cause Notice under Section 11A should have been issued as per Rule 8(3A) for duty recovery. They relied on a High Court ruling to support this argument.

The Tribunal considered the submissions and the High Court's decision, which stated that a Show Cause Notice under Section 11A is necessary in cases of default under Rule 8(3A). Since the Appellant had paid the entire duty amount from CENVAT Credit, the Tribunal found no need for a pre-deposit for the Appeal hearing. The Tribunal did not delve into the case's merits but focused on the procedural aspect. As the Commissioner(Appeals) had not decided on the case's merits, the Tribunal allowed the Stay Petition, set aside the attachment order, and remanded the matter for further consideration without requiring any additional pre-deposit.

Overall, the judgment addressed the issues of delayed duty payment, CENVAT Credit utilization, attachment of assets, the necessity of a Show Cause Notice, and compliance with High Court rulings. The Tribunal's decision emphasized procedural fairness and adherence to legal requirements, ultimately providing relief to the Appellant without insisting on further pre-deposit for the Appeal hearing.