2011 (3) TMI 1228 - AT - Central Excise

Waiver of pre-deposit - wrong availment of Cenvat Credit by the appellant - Held that - As seen from the Board Circular No.345/2/2004-TRU dated 28/07/2004 that the trader can discharge the duty liability on the goods, which were received by him prior to 09/07/2004. It is not clear in this case whether such goods, duty was paid on the goods invoiced to appellant, on which credit was availed were in fact received by the trader prior to 09/07/2004. If the trader issues an invoice of 18/08/2004; it has to be presumed that the Excise registration certificate issued to him was valid. If that be so, the issue needs to be considered from this angle also. In the absence of any findings on these points remand the matter back to the adjudicating authority to re-consider the issue afresh - allow assessee s appeal by way of remand.

Summary

Issues involved:
1. Waiver of pre-deposit of confirmed amount
2. Penalty imposed under Rule 13 of Cenvat Credit Rules, 2002
3. Interest under Section 11AB of the Central Excise Act, 1944
4. Wrong availment of Cenvat Credit by the appellant
5. Interpretation of Board Circular regarding duty liability

Analysis:

1. The appellant filed a stay petition for the waiver of pre-deposit of a confirmed amount and penalty imposed under Rule 13 of Cenvat Credit Rules, 2002, along with interest under Section 11AB of the Central Excise Act, 1944. The Tribunal found that the appeal could be disposed of immediately and allowed the stay application for waiver of pre-deposit, proceeding to take up the appeal for disposal.

2. The main issue in this case revolved around the appellant's wrong availment of Cenvat Credit on invoices issued by certain firms. The Revenue contended that the traders issuing the invoices had lost their status as manufacturers after the deletion of Rule 12B of Central Excise Rules, 2002. However, a Board Circular clarified that traders could still discharge duty liability on goods received prior to the rule's deletion.

3. The Tribunal noted that the crucial point was whether duty was paid on the goods invoiced to the appellant before the rule's deletion. The absence of findings on this aspect led the Tribunal to set aside the orders of lower authorities and remand the matter for reconsideration by the adjudicating authority, emphasizing the need to follow the principles of natural justice. The appeal was allowed by way of remand for a fresh examination of the issue.

This detailed analysis of the judgment highlights the key issues addressed by the Appellate Tribunal CESTAT, MUMBAI, providing a comprehensive understanding of the legal reasoning and decision-making process involved in the case.