2013 (11) TMI 1104 - AT - Central Excise

Duty to be paid at the time of clearance from factory under Sub-Rule 5A of Rule 3 of Cenvat Credit Rules, 2004 - Waiver of Pre-deposit of duty - Penalty u/s 11AC of Central Excise Act, 1944 Held that - To substantiate the claim that they had not availed Modvat Credit, assessee have not produced any evidence - it is a question of appreciation of evidences and no evidences and as has been produced to establish that Modvat/Cenvat Credit has not been availed on the storage tanks - the applicant directed to deposit 25% of Cenvat Credit as pre-deposit upon such submission rest of the duty to be waived till the disposal Partial stay granted.

Summary

Issues: Waiver of pre-deposit of duty and penalty under section 11AC of Central Excise Act, 1944.

Analysis:
1. The applicant sought waiver of pre-deposit of duty amounting to Rs.28,31,391/- and an equal penalty imposed under section 11AC of the Central Excise Act, 1944.
2. The consultant for the applicant argued that no duty was required to be paid at the time of clearance of dismantled storage tanks from the factory premises as they had not availed any Modvat Credit/Cenvat Credit on the tanks, which were installed before the introduction of Modvat Credit on capital goods.
3. The Revenue contended that the applicant failed to provide evidence to prove that no Modvat/Cenvat Credit had been taken on the tanks before their clearance without payment of duty.
4. The Tribunal observed that the applicant had indeed cleared the storage tanks without paying duty and that the burden of proof lay with the applicant to establish the non-availment of Modvat/Cenvat Credit on the tanks.
5. Since the applicant did not produce evidence before the lower authorities to support their claim, the Tribunal directed the applicant to deposit 25% of the Cenvat Credit involved within eight weeks. Upon such deposit, the balance dues would be waived, and recovery stayed during the appeal process. Failure to comply would lead to the dismissal of the appeal without further notice.

This judgment highlights the importance of providing substantial evidence to support claims in excise duty matters and the consequences of failing to do so. The Tribunal emphasized the need for proper documentation and verification of facts to determine the liability for duty and penalties under the Central Excise Act, 1944.