2012 (6) TMI 462 - AT - Central Excise

Plea for waiver of pre-deposit of duty and penalty of equal amount u/s 11AC - dismissal of appeal by Commissioner(Appeals) for non-compliance with the provisions of section 35F - assessee contended that CENVAT Credit has been disallowed only on the ground that their supplier which is a SEZ Unit is not required to pay duty, therefore credit is not admissible whereas no action has been taken against their supplier - Held that - Since Commissioner(Appeals) has not decided the issues on merits. Therefore the case is remanded to Commissioner(Appeals) for deciding the issue on its merits without insisting for any further pre-deposit.

Summary

Issues:
1. Application for waiver of pre-deposit of duty and penalty under section 11AC of Central Excise Act, 1944.
2. Dismissal of appeal by ld. Commissioner(Appeals) for non-compliance with pre-deposit requirement under section 35F.
3. Disallowance of CENVAT Credit on the ground that supplier, a SEZ Unit, is not required to pay duty.

Analysis:
1. The applicant filed an application seeking waiver of pre-deposit of duty amounting to Rs.3,52,320 and an equal amount of penalty under section 11AC of the Central Excise Act, 1944.
2. The ld. Consultant for the appellant contended that the ld. Commissioner(Appeals) dismissed their appeal without giving them an opportunity of hearing regarding the pre-deposit requirement under section 35F. The appeal was dismissed solely on the basis of non-compliance with the pre-deposit requirement, without a decision on the merits of the case. The contention was that the disallowance of CENVAT Credit was based on the fact that the supplier, a SEZ Unit, was not liable to pay duty, hence the credit was deemed inadmissible. It was argued that the department's action was improper as no action was taken against the supplier, suggesting a prima facie case in favor of the appellant.
3. The Tribunal, after hearing both sides, concluded that the appeal could be disposed of at that stage. It was noted that the ld. Commissioner(Appeals) had not addressed the merits of the case. Consequently, the case was remanded back to the ld. Commissioner(Appeals) to decide on the merits without requiring any pre-deposit. The appellant was to be granted a reasonable opportunity of hearing in this regard. The appeal was allowed by way of remand, and the stay petition was also disposed of accordingly.

This judgment highlights the importance of due process and the need for a proper consideration of the merits of a case before dismissing an appeal based solely on procedural grounds. The decision emphasizes the right to a fair hearing and the requirement for a reasoned decision based on the legal and factual aspects of the matter at hand.