2013 (10) TMI 938 - AT - Central Excise

Waiver of pre-deposit consignment wise payment of duty in cash - alleged that Appellant did not pay the duty payable by cash, as per their ER-1 return by the due date - Neither did they pay it with interest Held that - Following Baba Viswakarma Engg. Co. (P) Ltd. Vs. CCEx., Ghaziabad 2012 (9) TMI 814 - CESTAT, NEW DELHI - Department has not taken the initiative to make use of the provisions regarding confiscation since no seizure has been effected. So the only consequence will be penalty - there is no case for demanding the duty paid through Cenvat credit to be paid again through cash/PLA - there is no case for imposing penalty equal to duty defaulted - the requirement of predeposit of all dues waived and its recovery stayed during pendency of appeal Stay granted.

Summary

Issues: Application for waiver of predeposit of duty and penalty under Rule 25 of Central Excise Rules, 2002.

The judgment pertains to an application for waiver of predeposit of duty amounting to Rs.92,09,289/- and an equal penalty imposed under Rule 25 of Central Excise Rules, 2002. The appellant's consultant argued that the default in duty payment for November 2004 was rectified by subsequent cash payment. The consultant cited a previous Tribunal order and two cases, SAM Turbo Industry Ltd. and Baba Viswakarma Engg. Co. (P) Ltd., to support the argument that payment through cenvat credit should be accepted. On the other hand, the Department's representative contended that the relevant rule mandates duty discharge through PLA during the defaulting period, prohibiting cenvat credit utilization. The Department relied on the decision of the Hon'ble High Court of Gujarat in the Precision Fasteners Ltd. case. In response, the consultant emphasized that the cited judgment was not applicable as the duty for the default period was discharged subsequently.

After hearing both sides and examining the records, the Tribunal noted that it has consistently waived the requirement of predeposit of duty and penalty in similar cases, following the precedent set in the Baba Viswakarma Engg. Co. (P) Ltd. case. Therefore, the Tribunal decided to waive the predeposit requirement of all dues adjudged and stayed the recovery during the appeal's pendency. The stay petition was allowed, providing relief to the appellant in this matter.