2013 (11) TMI 76 - AT - Central Excise

Waiver of pre-deposit of Cenvat Credit duty payment document - Held that - The admissibility of Cenvat Credit on capital goods viz. Continuous Mixture and on Thermostat had been settled by this Tribunal vide its Order dated 16.02.2010 - The case was remanded to the adjudicating authority to verify the claim of the appellant - Prima facie, there was not any Invoice No.133 dated 19.04.1995, even though it has been referred to in the Annexure A to the show cause notice - in absence of Invoice No.133 dated 19.04.1995 placed before this Tribunal, by Revenue, prima facie, it would be difficult to accept that there is an Invoice No.133 dated 19.04.1995 which is different from the Bill of Entry dated 19.04.1995 as claimed by the Applicant. The applicant has made a categorical statement that there is no Invoice No.133 dated 19.04.1995 and they have availed credit on the Bill of Entry dated 19.04.1995 - There may not be any Invoice No.133 dated 19.04.1995 - the applicant are able to make a prima facie case for total waiver of pre-deposit of Cenvat Credit and accordingly the pre-deposit of Cenvat Credit is waived and its recovery stayed during pendency of the Appeal - in the event the department could able to locate and produce Invoice No.133 dated 19.04.1995, in contrast to the claim made by the Applicant the department may approach this Tribunal for appropriate direction - Stay granted.

Issues:
1. Waiver of pre-deposit of Cenvat Credit of Rs.21,93,953.07.

Analysis:
The Applicant sought waiver of pre-deposit of Cenvat Credit amounting to Rs.21,93,953.07. The case involved a dispute regarding the admissibility of Cenvat Credit on capital goods, specifically Continuous Mixture and Thermostat. In a previous round of litigation, the Tribunal had disallowed Cenvat Credit on these items. The Applicant contended that the duty involved on Thermostat was Rs.11,198/- and not Rs.21,82,755/- as claimed by the Revenue. The Applicant submitted that they had availed the Cenvat Credit against a Bill of Entry dated 19.04.1995, which consisted of 54 items, including the Thermostat. The Tribunal observed discrepancies in the records regarding the existence of Invoice No.133 dated 19.04.1995, as claimed by the Revenue. The Applicant denied the existence of such an invoice and stated that they had availed credit based on the Bill of Entry. Considering the lack of evidence of the disputed invoice, the Tribunal granted a waiver of pre-deposit of the Cenvat Credit and stayed its recovery during the appeal process. However, the Tribunal clarified that if the Revenue could produce Invoice No.133 dated 19.04.1995, they could seek appropriate directions from the Tribunal.

This judgment addressed the issue of waiver of pre-deposit of Cenvat Credit amounting to Rs.21,93,953.07. The Tribunal revisited the admissibility of Cenvat Credit on capital goods, particularly Continuous Mixture and Thermostat, following a previous order disallowing such credit. The Applicant claimed that the duty involved on Thermostat was Rs.11,198/- and not the higher amount asserted by the Revenue. Discrepancies arose regarding the existence of Invoice No.133 dated 19.04.1995, with the Tribunal finding no concrete evidence of its presence. The Applicant maintained that they had availed credit based on the Bill of Entry, refuting the existence of the disputed invoice. Given the lack of proof regarding the invoice, the Tribunal granted a waiver of pre-deposit of the Cenvat Credit and stayed its recovery pending the appeal. The Tribunal emphasized that if the Revenue could substantiate the existence of the disputed invoice, they could approach the Tribunal for further directions.

In this case, the Tribunal examined the request for waiver of pre-deposit of Cenvat Credit totaling Rs.21,93,953.07. The dispute centered on the admissibility of Cenvat Credit related to capital goods, specifically Continuous Mixture and Thermostat, which had been previously disallowed by the Tribunal. The Applicant argued that the duty amount on Thermostat was significantly lower than what the Revenue claimed. Issues arose regarding the alleged Invoice No.133 dated 19.04.1995, with conflicting claims regarding its presence in the records. The Tribunal noted the absence of concrete evidence supporting the existence of the disputed invoice. The Applicant reiterated that they had availed credit based on the Bill of Entry and denied the existence of the disputed invoice. Consequently, the Tribunal granted a waiver of pre-deposit for the Cenvat Credit and suspended its recovery during the pendency of the appeal. However, the Tribunal specified that if the Revenue could furnish evidence of Invoice No.133 dated 19.04.1995, they could seek appropriate directions from the Tribunal.

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