2013 (11) TMI 1132 - AT - Central Excise

Waiver of Pre-deposit assessee took suo-motu credit of the pre-deposits - Assessee contended that no permission from the department is required for taking suo motto credit of the pre-deposit made during the adjudication proceedings Held that - Shyam Textile Mills Vs. Union of India 2004 (6) TMI 590 - GUJARAT HIGH COURT - Appellant has made out a prima facie case for complete waiver of dues and penalties - there shall be waiver from the recovery of the amounts confirmed by the lower authorities till the disposal of the appeals stay granted.

Summary

Issues:
Appellant's right to take suo motto credit of pre-deposits made after favorable orders from appellate authorities.

Analysis:
The Appellate Tribunal CESTAT AHMEDABAD heard stay applications filed by the appellants against two separate orders in appeals passed by the Commissioner (Appeals), Surat. The core issue was whether the appellants were entitled to take suo motto credit of pre-deposits made after receiving favorable orders. The Revenue contended that the appellants should not have taken such credit as the original adjudicating authority's orders confirming the demand, interest, and penalties were upheld by the Commissioner (Appeals).

During the proceedings, the appellant's advocate argued that no permission from the department was necessary for taking suo motto credit of pre-deposits made during adjudication proceedings. The advocate cited relevant case laws to support this argument, including judgments such as Kunj Behari Dye Chem Pvt. Ltd. Vs. CCE Bangalore and Ambica Hydraulics (P) Ltd. Vs. CCE Ahmedabad, along with an order dated 28.6.04 from the Honorable High Court of Gujarat in the case of Shyam Textile Mills Vs. Union of India.

On the other hand, the Departmental Representative contended that the appellant should have filed a refund claim instead of taking suo motto credit after receiving a favorable order. After considering the arguments from both sides and reviewing the case records, the Tribunal referred to the judgment of the Honorable High Court of Gujarat in the case of Shyam Textile Mills Vs. Union of India. The Court's judgment emphasized that the appellant was entitled to avail the amount to their credit in the deemed credit register after succeeding before the Commissioner (Appeals) without needing permission from the authority whose order was set aside.

Moreover, the Tribunal referred to CESTAT's judgments in cases such as Kunj Behari Dye Chem Pvt. Ltd. Vs. CCE Bangalore and Ambica Hydraulics (P) Ltd. Vs. CCE Ahmedabad, which favored the assessee. It was concluded that the appellant had established a prima facie case for a complete waiver of dues and penalties. Consequently, there was a waiver from the recovery of the amounts confirmed by the lower authorities until the disposal of the appeals. The judgment was pronounced in favor of the appellant.