2013 (11) TMI 1014 - AT - Central Excise

Unconditional exemption or not - whether payment of duty is incorrect as per section 5A(1) - Concessional rate of duty under Notification No. 4/2006-CE - manufacturing of kraft paper - Irregular CENVAT credit revenue of the view that since unconditional exemption is available assessee wrongly paid duty and should be demanded u/s 11D and demand has been raised towards uitlization of cenvat credit Held that - serial numbers 90 & 91 imposed different conditions - There is no condition upto the first clearance of 3500 MTs of kraft paper in respect of Sl. No. 90 of the said Notification - the exemption under the Notification has not been granted absolutely - the applicant has made out a prima facie case for waiver of the entire amount of duty, interest and penalty Pre-deposit of the entire amount of duty, interest and penalty waived till the disposal stay granted.

Issues:
1. Waiver of pre-deposit under Section 11D(5) and irregular CENVAT credit.
2. Interpretation of conditions under Notification No. 4/2006-CE related to concessional duty rates for kraft paper.
3. Applicability of different conditions under Sl. No. 90 & 91 of the Notification.
4. Prima facie case for waiver of duty, interest, and penalty.

Analysis:
1. The applicant sought waiver of pre-deposit of Rs.77,66,818/- under Section 11D(5) and for irregular CENVAT credit. The adjudicating authority confirmed the demand based on the applicant's eligibility for NIL rate of duty under Sl. No. 90 of Notification No. 4/2006-CE. Additionally, the authority noted the contravention of Section 5A(1a) of the Central Excise Act, 1944, due to duty payment for the first clearance of 3500 MT under Serial No. 91 of the notification. The duty amount collected from buyers was to be credited to the Consumer Welfare Fund under Section 12C of the Act, and CENVAT credit was denied for irregular availing.

2. The interpretation of conditions under Notification No. 4/2006-CE for concessional duty rates on kraft paper was crucial. The adjudicating authority highlighted the different conditions imposed under Sl. No. 90 & 91 of the notification. The Board's Circular No. 937/27/2010-CX was referenced, emphasizing the application of Section 5A(1A) where absolute exemption from duty payment is granted. In this case, the conditions under both serial numbers were distinct, with Sl. No. 90 not providing conditions up to the first clearance of 3500 MTs of kraft paper. The Commissioner's findings were deemed unsustainable as the exemption under Sl. No. 90 was not absolute.

3. The issue of the applicability of different conditions under Sl. No. 90 & 91 of the Notification was analyzed. The Tribunal noted the distinct conditions specified under the two serial numbers. It was observed that the exemption under Sl. No. 90 was not granted absolutely, leading to a prima facie case for waiver of the entire duty amount, interest, and penalty. The applicant's case for waiver was considered valid, and the pre-deposit of the duty, interest, and penalty was waived, with recovery stayed until the appeal's disposal.

4. In conclusion, the Tribunal found that the applicant had made out a prima facie case for the waiver of the duty, interest, and penalty amounts. The differing conditions under Sl. No. 90 & 91 of the Notification were crucial in determining the eligibility for concessional duty rates on kraft paper. The waiver of the pre-deposit was granted, and recovery was stayed pending the appeal's resolution, as the exemption under Sl. No. 90 was not absolute, supporting the applicant's case for waiver.

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