2011 (10) TMI 445 - HC - Central Excise

Waiver of pre-deposit - Tribunal directed to pre-deposit Rs. 2.11 Crores as against demand of Rs. 2.21 Crores and equivalent penalty - held that - it would not be appropriate for this Court to make any final determination of the submissions raised including on the question of jurisdiction since these are matters which must be considered by the Tribunal at the stage of the hearing of the appeals. Having regard to the facts and circumstances of the case, we are of the view that the ends of justice could be met if the order of the Tribunal is modified so as to direct the assessee to deposit an amount of Rs. 75 lacs before the Tribunal within a period of four weeks from today.

Summary

Issues involved:
- Appeal against an order of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) regarding waiver of pre-deposit under Section 35-F of the Central Excise Act 1944.
- Determination of duty demand, penalty, and waiver of pre-deposit based on actual production and Annual Capacity of Production (ACP).
- Tribunal's decision on withdrawal of appeals, remand orders, and pre-deposit amount determination.
- Arguments regarding jurisdiction under Section 3A, statutory provisions, and Tribunal's modification of pre-deposit amount.

Analysis:
1. The appellant, a manufacturer of M.S. ingots, appealed against the CESTAT order directing a deposit of Rs. 2.11 Crores under Section 35-F, challenging the justification for the deposit and lack of prima facie case for total waiver.
2. The Commissioner confirmed a duty demand of Rs. 2.21 Crores with an abatement of Rs. 2 Crores and imposed a penalty under Rule 96ZO(1). The appellant sought waiver of pre-deposit, contending the actual production was higher than determined ACP.
3. The Tribunal noted withdrawal of appeals related to ACP determination but remanded others for reconsideration. The appellant argued for redetermination based on actual production and challenged the invocation of Section 3A post its deletion by Finance Act 2001.
4. The Tribunal determined a pre-deposit amount considering net duty demand, abatement, and withdrawal of appeals, leading to a deposit of Rs. 2.11 Crores with a partial waiver.
5. The Court modified the Tribunal's order, directing the appellant to deposit Rs. 75 lacs within four weeks, considering the submissions made and the need for justice without continuous remands, keeping all rights and contentions in the main appeal open.

Conclusion:
The judgment addressed the issues of duty demand, penalty, and pre-deposit waiver based on ACP and actual production, highlighting the appellant's arguments on jurisdiction and statutory provisions. The Court modified the pre-deposit amount, balancing the interests of justice and revenue entitlement, ensuring a fair consideration of submissions during the appeal hearing.