2013 (12) TMI 1142 - AT - Central Excise

Utilization of Cenvat credit in Basic excise duty - Education Cess and Secondary and Higher Education Cess discharged by debiting in RG 23A Part-II Waiver of Pre-deposit Held that -Following COMMISSIONER OF CENTRAL EXCISE Versus MALWA INDUSTRIES LTD. 2009 (4) TMI 381 - PUNJAB & HARYANA HIGH COURT Unconditional stay granted for the amount due - The appellant has made out a case for the waiver of amount - Pre-deposits waived till the disposal stay granted.

Summary

Issues:
Utilization of Cenvat credit in basic excise duty for Education Cess and Secondary and Higher Education Cess.

Analysis:
The issue in this case revolves around the utilization of Cenvat credit in basic excise duty for the discharge of Education Cess and Secondary and Higher Education Cess by debiting the same in RG 23A Part-II. The appellant's counsel argued that a similar issue in the case of the same assessee was previously granted an unconditional stay by the Bench, citing a stay order from 2012. On the contrary, the departmental representative referred to a decision by the principle Bench in the case of Bharat Box Factory Limited, which favored the Revenue by holding that Cenvat credit of basic excise duty cannot be used for Cess payment while availing the Area Based Exemption. The department suggested imposing conditions on the appellant due to this decision.

Upon careful consideration, the Tribunal noted that in a previous stay order from 2012 in the appellant's own case, an unconditional stay was granted on an identical issue, following a judgment of the Hon'ble High Court of Punjab & Haryana in the case of Malwa Industries Limited. The Tribunal found that the decision of the principle Bench in the case of Bharat Box Factory Limited did not consider the High Court's decision and thus had no reason to deviate from the view already taken. Consequently, the Tribunal held that the appellant had made a case for the waiver of pre-deposit of the amounts involved, allowing the applications for waiver and staying the recovery until the appeals' disposal.

Furthermore, since the issue in these appeals pertains to the same assessee and an identical issue as in another appeal, the registry was directed to link these appeals with the said appeal of the assessee for disposal in due course. The judgment was dictated and pronounced in the Court by Mr. M.V. Ravindran.