2013 (1) TMI 124 - AT - Central Excise

Waiver of pre-deposit - Stay of recovery Classification - SILO systems - Heading 9406 and sub-heading 9406 00 99 - Heading 8437 and sub-heading 8437 10 00 - Rule 25 of the Central Excise Rules, 2002 - Section 11 AC Held that - The total CENVAT credit claimed to be available to the assessee for the normal period of demand is approximately Rs.61 lakhs. If this credit is taken into account, the amount of duty for pre-deposit would work out to Rs.1.82 crores. We shall restrict the amount to Rs.1.5 crores for the present purpose. In the absence of any plea of financial hardships, direct the appellant to pre-deposit an amount of Rs.1.5 crores.

Summary

Issues:
Waiver of pre-deposit and stay of recovery sought by appellant in relation to adjudged dues including duty of over Rs.3.98 Crores; Classification dispute regarding SILO systems under Central Excise Tariff Act; Claim of CENVAT credit by appellant; Allegations of suppression of facts and limitation raised by appellant; Arguments presented by both parties regarding classification and CENVAT credit; Prima facie case analysis by the Tribunal; Decision on pre-deposit amount and stay of recovery.

Classification Dispute:
The appellant sought waiver of pre-deposit and stay of recovery in relation to adjudged dues, including duty of over Rs.3.98 Crores, arising from the classification dispute regarding SILO systems under the Central Excise Tariff Act. The appellant claimed that the SILO systems should be classified under heading 8437, attracting a 'Nil' rate of duty, based on the features and usage of the systems. The appellant argued that a previous Tribunal decision supported this classification, and the SILOs were fabricated on-site, not as pre-fabricated buildings. The appellant also raised limitations against the demand of duty, asserting bona fide classification following the old Tribunal decision. However, the Additional Commissioner contended that the SILO systems should be classified under heading 9406, as they were primarily used for storing grains, not cleaning or grading operations under heading 8437. The Additional Commissioner opposed the appellant's claim of CENVAT credit, citing lack of supporting evidence. The Tribunal found no prima facie case for the appellant on the classification issue, accepting the Additional Commissioner's arguments and ruling against the appellant's classification stance.

CENVAT Credit and Limitation:
The appellant claimed entitlement to utilize CENVAT credit of over Rs 2.26 crores if the duty demand was upheld, supported by certificates and invoices. The appellant argued that the claim was not raised earlier but provided evidence now. The Additional Commissioner opposed this claim, stating it was not raised before the adjudicating authority and lacked sufficient documentary support. The Tribunal, while not quantifying the exact CENVAT credit, allowed an allowance considering the available credit for the normal period of demand, approximately Rs. 61 lakhs. The Tribunal also accepted the plea of limitation raised by the appellant, though detailed examination was deferred to the final hearing stage.

Prima Facie Analysis and Pre-deposit Decision:
After careful consideration, the Tribunal found no prima facie case for the appellant on the classification issue, leaning towards the Additional Commissioner's arguments. The Tribunal accepted the plea of limitation raised by the appellant and allowed an allowance for CENVAT credit. The Tribunal directed the appellant to pre-deposit an amount of Rs.1.5 crores within six weeks, with a provision for waiver of pre-deposit and stay of recovery subject to compliance. The decision aimed to balance the interests of both parties pending final adjudication.

This detailed analysis of the judgment highlights the key issues of waiver of pre-deposit, classification dispute, CENVAT credit claim, limitation arguments, and the Tribunal's decision on pre-deposit amount and stay of recovery.