2012 (12) TMI 385 - AT - Central Excise

Waiver of pre-deposit - demanded as interest and penalty Held that - Interest liability in this case is relatable to the transfer of credit of education cess effected by the appellant to make it a credit of basic excise duty. True, the taking of credit of education cess in the past was not irregular. But, when it was transferred to the credit column relating to basic excise duty, it turned out to be a case of irregular taking of basic excise duty in the CENVAT account and that credit was reversed only in August 2009 - Rule 14 of the CENVAT Credit Rules, 2004 is squarely applicable - appellant has not pleaded financial hardships. In the circumstances, there will be a direction to them to pre-deposit

Summary

Issues:
1. Waiver of pre-deposit and stay of recovery sought by the appellant for interest and penalty imposed.
2. Liability to pay interest under Rule 14 of the CENVAT Credit Rules, 2004 on the transferred amount of CENVAT credit.
3. Interpretation of the applicability of the decision in the case of M/s. Ind-Swift Laboratories Ltd.
4. Prima facie case analysis for the appellant's plea and the direction for pre-deposit.

Issue 1:
The appellant sought waiver of pre-deposit and stay of recovery for an amount demanded as interest and penalty. The appellant transferred an amount initially taken as CENVAT credit of education cess to the credit column for basic excise duty in January 2008. The appellant reversed the entire credit in August 2009 voluntarily. The question arose whether the appellant was liable to pay interest under Rule 14 of the CENVAT Credit Rules, 2004 on the transferred amount of credit. The department did not dispute the reversal but demanded interest and penalty, which were upheld by the adjudicating authority and the first appellate authority.

Issue 2:
The appellant argued that they were not liable to pay interest as the credit of education cess was taken in order, and despite irregular transfer, it was reversed in August 2009. Citing the decision in the case of M/s. Ind-Swift Laboratories Ltd., the appellant contended that the reversal of CENVAT credit amounts to non-taking of credit, thus no interest should be demanded. The department opposed this, stating that partial utilization was reflected in the statements, making the plea of non-utilization untenable.

Issue 3:
The interpretation of the applicability of the decision in the case of M/s. Ind-Swift Laboratories Ltd. was crucial. The appellant relied on this decision to argue against the demand for interest on the transferred credit amount. However, the department contested this interpretation, highlighting the partial utilization of the credit as per the adjudicating authority's findings.

Issue 4:
After considering the submissions, the Judge found no prima facie case for the appellant. The Judge determined that the interest liability stemmed from the irregular transfer of credit, which was only reversed in August 2009. Rule 14 of the CENVAT Credit Rules, 2004 was deemed applicable, along with the decision in the case of M/s. Ind-Swift Laboratories Ltd. The High Court's judgment distinguishing the latter case was considered inapplicable. The appellant was directed to pre-deposit a specific amount within a set timeline, with a waiver of pre-deposit for the remaining dues contingent upon compliance. Financial hardships were not pleaded by the appellant in this context.