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2013 (9) TMI 348 - AT - Central ExciseStay Application - Pre-deposit Held that - Action against the consignee to reverse/recover the CENVAT credit availed of in such cases need not be resorted to as long as the bona fide nature of the consignee s transaction is not in dispute - Pre-deposit is waived and recovery thereof is stayed during the pendency of appeal. Decided in favor of Assessee.
Issues:
- Application for waiver of pre-deposit of cenvat credit and penalty under Rule 15 (1) Cenvat Credit Rule, 2004. Analysis: The applicant filed an application seeking waiver of pre-deposit of cenvat credit amounting to Rs. 1,00,246/- along with an equivalent penalty imposed under Rule 15 (1) Cenvat Credit Rule, 2004. The crux of the applicant's contention was that the department had initiated proceedings against them for allegedly availing and utilizing Cenvat Credit of duty without the duty being paid by their supplier. The applicant relied on Circular No.766/82/2003-CX issued by the Central Board of Excise & Customs, New Delhi, dated 15th December, 2003. The circular clarified that action to reverse/recover the CENVAT credit need not be taken against the consignee as long as the bona fide nature of the transaction is not in dispute. Additionally, reference was made to a decision by a Co-ordinate Bench in a specific case. The applicant emphasized that they had indeed received the inputs in their factory, and highlighted the provisions of Rule 8(2) of the Central Excise Rules, 2002. This rule contains a deeming provision regarding the payment of excise duty, stating that credit of duty should not be denied even if the duty has not been paid by the supplier. Considering the circumstances and arguments presented, the presiding judge, S K Gaule, found merit in the applicant's case for a complete waiver of the dues adjudged. Consequently, the pre-deposit requirement was waived, and the recovery of the amount was stayed pending the appeal process. The application for stay was granted, allowing the applicant relief during the pendency of the appeal.
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