2013 (3) TMI 388 - AT - Central Excise

Wrong availment of Cenvat credit as the activity undertaken does not amount to manufacture - assessee seeks waiver of pre-deposit of duty, interest and penalty - Held that - As the applicant has paid the duty more than the credit now being denied and the duty has been accepted by the Revenue, therefore the credit cannot be denied on the ground that the activity undertaken by the applicant does not amount to manufacture. As applicant has made out a strong case in their favour, pre-deposit of the dues is waived and recovery of the same is stayed during the pendency of the appeal. The stay petition allowed.

Summary

Issues:
Waiver of pre-deposit of duty, credit availed by the applicant, activity undertaken by the applicant, manufacture, payment of duty through PLA, objection by Revenue, stay of recovery during appeal.

Analysis:

1. Waiver of Pre-deposit of Duty:
The applicant filed an application seeking waiver of pre-deposit of duty amounting to Rs. 1,14,33,192/-, interest, and penalty. The demand was confirmed on the basis that the applicant wrongly availed credit as the activity undertaken did not amount to manufacture.

2. Activity Undertaken by the Applicant:
During the disputed period, the applicant availed credit and cleared goods by utilizing the credit and paying through PLA. An amount of Rs. 16,04,778/- was paid from PLA towards duty for the cleared goods. The applicant contended that the activity undertaken at various places outside Mumbai amounts to manufacture, and the Revenue did not object to the availing of credit and payment of duty.

3. Manufacture and Credit Availed:
The Tribunal found that the duty paid by the applicant exceeded the credit being denied, and the Revenue had accepted the duty payment. Therefore, the credit could not be denied on the grounds that the activity did not amount to manufacture. The Tribunal held that the applicant had a strong case in their favor, leading to the waiver of pre-deposit of dues and a stay on recovery during the appeal process.

4. Revenue's Objection and Stay of Recovery:
Despite the Revenue not objecting to the activity undertaken by the applicant in availing credit and paying duty, the Tribunal ruled in favor of the applicant based on the duty payment exceeding the denied credit. Consequently, the Tribunal allowed the stay petition, waiving the pre-deposit of dues and halting the recovery process during the pendency of the appeal.

In conclusion, the Tribunal's judgment favored the applicant by granting a waiver of pre-deposit of duty and staying the recovery process during the appeal, emphasizing that the duty payment made by the applicant exceeded the credit being denied, and the Revenue had accepted the duty payment despite the nature of the activity undertaken by the applicant.