2012 (8) TMI 1 - AT - Central Excise

Waiver of pre-deposit - CENVAT credit denied on MS Angles, Channels and similar items period of limitation - show-cause notice was issued on 28.5.2009 for demanding duty for the period 2004-09 - assessee submitted that during the material period, there were decisions of this Tribunal which prompted the appellant to believe that they were entitled to avail CENVAT credit on MS Angles and similar items Held that - plea of bona fide belief was specifically raised in the reply to the show-cause notice but, there was no occasion for the Commissioner to consider it inasmuch as he was bent on rejecting the assessee s appeal for want of pre-deposit without looking into the merits of the case - case should be disposed of by the learned Commissioner (Appeals) on merits in accordance with law and principles of natural justice - appellant should make pre-deposit of the offered amount.

Summary

Issues:
- Waiver and stay application
- Confirmation of demand of CENVAT credit
- Imposition of penalty
- Appeal before Commissioner (Appeals)
- Non-compliance under Section 35F of the Central Excise Act
- Contest on the ground of limitation
- Change in belief due to Tribunal decisions
- Invocation of extended period of limitation
- Lack of opportunity to agitate the issue before Commissioner (Appeals)
- Bona fide belief plea
- Disposal of the case on merits and principles of natural justice
- Pre-deposit requirement

Waiver and Stay Application:
The application sought waiver and stay regarding the amounts adjudged against the appellant. The Tribunal decided to finally dispose of the appeal after dispensing with the pre-deposit requirement.

Confirmation of Demand of CENVAT Credit and Penalty:
The original authority confirmed a demand of Rs. 42,11,371/- as CENVAT credit denied on specific items for a certain period, along with interest and an equal amount of penalty. The appellant appealed against this decision.

Appeal Before Commissioner (Appeals) and Non-Compliance:
The appellant appealed before the Commissioner (Appeals) and filed an application for waiver of pre-deposit. The Commissioner (Appeals) disposed of the stay application with a direction for pre-deposit, which was not complied with by the appellant, leading to dismissal of the appeal.

Contest on the Ground of Limitation and Change in Belief:
The demand of duty was mainly contested on the ground of limitation. The appellant believed they were entitled to avail CENVAT credit based on previous Tribunal decisions until a new decision changed their understanding. The appellant argued against the invocation of the extended period of limitation.

Bona Fide Belief Plea and Disposal of the Case:
The appellant raised a plea of bona fide belief in their reply to the show-cause notice, which was not considered by the Commissioner (Appeals) due to the focus on pre-deposit. The Tribunal directed the case to be disposed of on merits by the Commissioner (Appeals) with a requirement for pre-deposit.

Pre-Deposit Requirement:
The Tribunal directed the appellant to pre-deposit a specific amount within a deadline to enable the Commissioner (Appeals) to review the case on merits without further pre-deposit requirements, ensuring principles of natural justice are followed.