2013 (10) TMI 1138 - AT - Central Excise

Modification of Stay Order Rectification of Mistake Waiver of Pre-deposit - Held that - There is a factual dispute of the use of these items - The applicant placed the Chartered Engineer s certificate in order to establish that these items are used for fabrication / support of the machinery which is not clear from the order of the Commissioner - the applicants have not made out a prima facie case for total waiver of pre-deposit of duty and penalty - the applicant is directed to deposit amount as pre-deposit upon such submission balance dues shall stand waived and recovery stayed till the disposal of the appeals. The main contention of the AR is that the direction of pre-deposit is related to only one appeal as the amount of cenvat credit as mentioned in memo in respect of that appeal. The words the applicant filed these applications for waiver of pre-deposit as mentioned in the first para of Tribunal stay order make it clear that the stay order was passed taking into consideration of five appeals and not one appeal there was no force in the submission of the Ld. AR that Tribunal should direct the assessee to deposit 50% of the total amount of duty in these cases - the amount involved in the first paragraph of the stay order is a clerical error, and therefore it is directed that the amount mentioned in the first paragraph as Rs.53,57,484/- should be read as Rs.1,82,22,414 Decided in favour of Revenue.

Summary

Issues:
1. Modification of Stay Order
2. Eligibility of Cenvat Credit on certain items
3. Scope of Tribunal's authority in modifying stay orders

Issue 1: Modification of Stay Order
The Revenue filed applications seeking modification of a Stay Order directing a deposit of Rs.25 lakhs within 5 weeks. The Revenue argued that the Tribunal's order only accounted for one appeal's amount, while the total demand of cenvat credit involved multiple appeals totaling Rs.1,82,22,414. The Tribunal was urged to modify the predeposit amount to consider all applications. The applicant contended that the Tribunal's original order already considered all five applications, and the discrepancy in the first paragraph was a typographical error that could be corrected. The Tribunal noted the need for examination on the applications.

Issue 2: Eligibility of Cenvat Credit on certain items
The Revenue argued that the items for which cenvat credit was claimed, like MS angles and channels, were not eligible as they were used in construction and structural support, citing legal precedents in favor of the Revenue's stance. The Revenue suggested that the predeposit amount should be at least 50% of the total duty involved in the applications. The applicant, on the other hand, emphasized the limited scope of modifying stay orders and presented arguments based on Chartered Engineer certificates and legal judgments supporting their position. The Tribunal reviewed the facts and previous orders, noting the factual dispute regarding the use of the items and the Chartered Engineer's certificate provided by the applicant.

Issue 3: Scope of Tribunal's authority in modifying stay orders
The applicant's advocate highlighted the limited scope of modifying stay orders, citing relevant legal precedents. The Tribunal, after hearing both sides and examining the records, reiterated the findings of the previous stay order, emphasizing that it had considered various judgments and the Commissioner's previous order allowing credit on similar items. The Tribunal clarified that the predeposit amount mentioned in the order was related to all five appeals and not just one, dismissing the argument for a 50% predeposit amount. The Tribunal corrected the clerical error in the amount mentioned in the first paragraph of the stay order, directing it to be read as Rs.1,82,22,414. The Revenue's miscellaneous applications were disposed of accordingly.

This detailed analysis of the judgment addresses the issues of modification of stay orders, the eligibility of cenvat credit on specific items, and the Tribunal's authority in such matters, providing a comprehensive overview of the legal arguments and decisions made by the Tribunal in this case.