2013 (9) TMI 777 - HC - Central Excise

Adjustment of pre-deposit with cenvat credit - Section 35F - Held that - Rule(1) of Rule 3 of the Cenvat Credit Rules, 2004 does not prohibits the assessee to adjust the said credit against its liability created by either order which is sought to be challenged in appeal requiring the deposit of the amount under Section 35 F of the Central Excise Act - petitioner was entitled to have this adjustment of his credit amount against his liability under Section 35 F of the Central Excise Act - Decided in favour of assesee.

Summary

Issues: Application for exemption from pre-deposit rejected by Commissioner, petitioner's compliance with pre-deposit under Section 35 F of Central Excise Act, contention regarding adjustment of credit entry against pre-deposit condition, dismissal of appeal by Appellate Authority for failure to deposit required amount, permissibility of adjustment as per Customs, Excise and Service Tax Appellate Tribunal decisions, Rule-3 of Cenvat Credit Rules, 2004 allowing credit benefits, non-speaking order by Commissioner, Appeal, allowance of adjustment of credit against liability under Section 35 F of Central Excise Act, setting aside of order and direction for competent appeal consideration.

In this case, the petitioner's application for exemption from the pre-deposit condition was rejected by the Commissioner, but the petitioner was allowed to comply with the pre-deposit under Section 35 F of the Central Excise Act. The petitioner contended that they had reversed a specific amount and provided details of other taxes, including cess, which they believed should have been adjusted against the pre-deposit requirement. Despite informing the Appellate Tribunal about this adjustment, the appeal was dismissed for failing to deposit the required amount. The petitioner argued that such adjustment was permissible based on decisions by the Customs, Excise and Service Tax Appellate Tribunal and other courts. The respondents, however, cited Rule-3 of the Cenvat Credit Rules, 2004, stating that credit adjustment was only allowed for specific purposes mentioned in the rule and not for other liabilities. The High Court analyzed the submissions and laws presented by both parties and concluded that Rule 3 of the Cenvat Credit Rules did not prohibit adjusting the credit against the liability under Section 35 F of the Central Excise Act. The Court found the order rejecting the petitioner's appeal to be a non-speaking order, as the Commissioner did not consider the petitioner's compliance through adjustment. Therefore, the Court allowed the writ petition, set aside the order, and directed the Appellate Authority to consider the petitioner's appeal in accordance with the law.