2013 (11) TMI 289 - AT - Central Excise

Cenvat Credit - simultaneous manufacturing and trading activity - Waiver of pre-deposit of cenvat credit and Penalty under Rule 15(2) of CC Rules Held that - Even though the claim was made by the applicant in their reply before the ld. Adjudicating Authority, the same has not been considered on the ground that the applicant failed to produce the evidences - With regard to the balance credit of Rs.67.00 lakhs, there was force in the argument of the Advocate that the entire amount of cenvat credit cannot be attributable towards their trading activities only in absence of evidences when they carry out both manufacturing and trading activities - the offer made by the Advocate to deposit an amount of Rs.10.00 lakhs, is sufficient at this stage to hear their appeal - the applicant is directed to deposit Rupees ten lakhs as pre-deposit upon such submission rest of the duty to be waived till the disposal Partial stay granted.

Summary

Issues: Application for waiver of predeposit of cenvat credit and penalty under Rule 15(2) of Cenvat Credit Rules, 2004.

Analysis:
The appellant sought waiver of predeposit of cenvat credit amounting to Rs.3.98 Crores and an equal penalty imposed under Rule 15(2) of the Cenvat Credit Rules, 2004. The advocate for the appellant argued that the demand was erroneous as a significant portion of the amount pertained to cenvat credit availed on service tax paid to overseas commission agents for distributing manufactured goods in the overseas market. The appellant contended that this aspect was not considered by the Commissioner despite being raised in the reply to the show-cause notice. Additionally, the advocate highlighted that the remaining amount was not entirely attributable to trading activities, as the appellant was engaged in both manufacturing and trading, with trading constituting only 20% of the total turnover. The advocate offered to deposit Rs.10.00 lakhs, representing a proportionate amount based on the ratio of trading to manufacturing activities.

The Revenue argued that the appellant failed to produce evidence before the Adjudicating Authority despite making submissions in response to the show-cause notice. After hearing both sides and examining the records, the Tribunal observed that the appellant had specifically claimed that a substantial portion of the cenvat credit related to service tax paid under Section 66A of the Finance Act, 1994, for services received from overseas buyers. The Tribunal noted that the appellant had submitted relevant ST-3 Returns to support this claim. It was also noted that the appellant's argument regarding the remaining credit not solely being attributable to trading activities had merit, especially considering their dual engagement in manufacturing and trading. The Tribunal found the offer made by the appellant's advocate to deposit Rs.10.00 lakhs reasonable at that stage and directed the appellant to make the said deposit within six weeks. Upon compliance, the balance amount of dues would be waived, and recovery stayed during the appeal process.

In conclusion, the Tribunal granted partial relief to the appellant by allowing the waiver of the balance amount of dues upon the deposit of Rs.10.00 lakhs within the specified timeline. The decision was based on the merits of the appellant's arguments regarding the nature of the cenvat credit availed and the proportionality of the deposit offered in relation to their business activities.