2013 (9) TMI 497 - AT - Central Excise

Waiver of pre deposit of penalty - method of valuation - cost plus - Held that - Commissioner had dealt with the contention of application at length - the contention of the revenue that the Commissioner had given discrete findings in respect of each and every CAS-4 filed by the applicant they had also dropped the demand out of total demand in the case - the CAS-4 Certificates of the assesses were faulty which contain gross irregularities - certificate cannot be used as instrument in determination of cost of production whereas it was required to be determined for arriving at the assessable value of the goods assesse had submitted the Balance Sheets Profit & Loss Accounts but they had not submitted Unit Trial Balance of the relevant period - applicants were not able to make out a prima facie case of total waiver of duty imposed on them The balance of convenience was in favour of the Revenue in the case - The applicant was directed to make pre deposit of 25% of duty Decided partly in favor of assesse.

Summary

Issues: Application for waiver of pre-deposit of duty and penalty based on discrepancies in CAS-4 Certificates.

Analysis:
The applicant filed an application seeking a waiver of pre-deposit of duty amounting to Rs.66.00 Lakhs along with an equal penalty. The contention raised was that the demand was calculated by the Department based on the balance sheet of consolidated figures of BOC (I) Ltd. The Department highlighted discrepancies in the CAS-4 Certificates submitted by the assessee, pointing out irregularities and deviations from accepted accounting principles. The Ld. Commissioner extensively analyzed the CAS-4 Certificates and found various inconsistencies in the determination of overhead costs for different capacities of Cryogenic Vessels. The Ld. Commissioner also emphasized the importance of accurate financial documentation and requested audited Balance Sheets, Profit & Loss Accounts, and Unit Trial Balance for the relevant period, which were not fully provided by the assessee.

The Ld. Commissioner made discrete findings on each CAS-4 filed by the applicant and dropped a portion of the total demand due to identified discrepancies. Despite the applicant's failure to demonstrate financial hardship and the balance of convenience favoring the Revenue, the Tribunal directed the applicant to make a pre-deposit of 25% of the duty within a specified timeframe. Compliance with this directive would result in the waiver of the remaining dues and a stay on recovery during the appeal's pendency. Failure to comply would lead to the dismissal of the appeals without further notice, as per the decision in a previous case. The Tribunal's decision was based on a thorough examination of the facts and legal principles, balancing the interests of both parties involved in the dispute.