2013 (1) TMI 357 - AT - Central Excise

Waiver of pre-deposit - Wrongly claiming abatement - Assessee is manufacturer of Portland Grey Cement Availing SSI exemption - Cleared the goods on payment of duty beyond the limit of SSI exemption - After claiming abatement of 30% on MRP - Notification No. 14/2008-C.E. (N.T.), dated 1st March, 2008 - Notification No. 4/2006-C.E., dated 1-3-2006 Held that - It appears that the clearances made by the party from 23-9-2008 to 31-3-2010 (period during which Central Excise duty was paid by the party) are covered by Serial No. 1A of the Notification No. 4/2006-C.E., dated 1-3-2006, as amended. It is prima facie evident that vide show cause notice, the appellant was put on notice that during period in question he was required to pay excise duty on the goods cleared by him as per Notification No. 4/2006-C.E., dated 1-3-2006. Waiver denied

Issues Involved:
1. Waiver of pre-deposit of duty demand.
2. Applicability of abatement under Notification No. 14/2008-C.E. (N.T.).
3. Scope of the show cause notice.

Detailed Analysis:

1. Waiver of Pre-deposit of Duty Demand:
The appellant sought a waiver for the pre-deposit of Rs. 11,13,068/- duty demand along with interest. The Tribunal considered whether the appellant had a prima facie case to justify the waiver. The appellant argued that the duty demand was based on an incorrect interpretation of the exemption Notification No. 14/2008-C.E. (N.T.). However, the Tribunal found that the appellant did not have a strong prima facie case for waiver and directed the appellant to deposit the entire duty demand with interest within four weeks.

2. Applicability of Abatement under Notification No. 14/2008-C.E. (N.T.):
The appellant, a manufacturer of Portland Grey Cement, claimed abatement of 30% on MRP under Notification No. 14/2008-C.E. (N.T.). The department contended that the appellant was not entitled to this abatement and should pay 10% of the retail sale price as per Notification No. 4/2006-C.E. (N.T.). The Tribunal examined the relevant part of Notification No. 14/2008-C.E. (N.T.), which specified abatement for "White cement, whether or not artificially coloured and whether or not with rapid hardening properties." Since the appellant's product was grey portland cement and not white cement, the Tribunal concluded that the appellant was not entitled to the abatement under the said notification.

3. Scope of the Show Cause Notice:
The appellant argued that the impugned order was beyond the scope of the show cause notice. The Tribunal reviewed Paras 6 and 8 of the show cause notice, which indicated that the appellant was required to pay excise duty as per Notification No. 4/2006-C.E. (N.T.). The Tribunal found that the show cause notice had adequately informed the appellant about the duty demand based on Notification No. 4/2006-C.E. (N.T.), and thus, the impugned order did not exceed the scope of the show cause notice.

Conclusion:
The Tribunal directed the appellant to deposit the entire duty demand with interest within four weeks, as the appellant did not have a prima facie case for waiver. The Tribunal upheld the department's interpretation that the appellant was not entitled to abatement under Notification No. 14/2008-C.E. (N.T.) and confirmed that the impugned order was within the scope of the show cause notice. The case was listed for compliance on 20th September 2012.

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