2014 (1) TMI 1159 - AT - Central Excise

Clandestine removal of goods - Benefit of an exemption Notification No. 3/2004 No separate accounts maintained Waiver of Pre-deposit Held that - Prima facie case could not be found in the favour of assessee - they were not maintaining separate accounts in respect of inputs used in the manufacture of dutiable and exempted final products - Their claim to the contra appears to be just an ipse dixit - the conduct of the appellant also discloses that they felt that they were entitled to collect 10% of the sale price of the exempted goods from their customer - The purchase order placed on the appellant by the customer indicates this fact - Prima facie, the recovery of money by the appellant from the customer was as agreed between the two - the conduct of the appellant fairly shows that the appellant was proceeding on the premise that they were not maintaining separate accounts in respect of the inputs. The applicability of the provisions invoked by the department, Rule 14 of the CCR, 2004 was invocable for recovery of the amount payable by the party in terms of sub-rule (3) of the Rule 6 vide Explanation III to Rule 6 - Rule 14 expressly mentions Section 11A for such recovery - the legal plea is also not prima facie tenable - Assessee is liable to pre-deposit the amount demanded in terms of Rule 6(3) of the CCR, 2004 - the appellant has already paid an amount of Rs. 11,21,394 hence, the appellant should pre-deposit the balance amount of Rupees Ten lakhs eighty two thousand eight hundred seven as pre-deposit upon such submission rest of the duty to be stayed till the disposal Partial stay granted.

Summary

Issues:
1. Waiver of pre-deposit and stay of recovery sought by the appellant for the demanded amount.
2. Maintenance of separate accounts for dutiable and exempted goods.
3. Payment made in April 2009 in lieu of reversal of CENVAT credit.
4. Applicability of Section 11A and Rule 6(3) of CCR, 2004.
5. Financial hardships plea.
6. Pre-deposit requirement and stay application decision.

Issue 1: Waiver of pre-deposit and stay of recovery
The appellant sought waiver of pre-deposit and stay of recovery for the demanded amount of Rs. 22,04,201/- along with an equal penalty. The appellant claimed to have maintained separate accounts for inputs used in dutiable and exempted goods, which was contested by the authorities.

Issue 2: Maintenance of separate accounts
The appellant argued that they had maintained separate accounts for inputs used in dutiable and exempted goods, but this claim was not substantiated with evidence. The authorities found that no separate records were maintained, leading to the demand under Rule 6(3) of CCR, 2004.

Issue 3: Payment made in April 2009
The payment made by the appellant in April 2009 was claimed to be in lieu of reversal of CENVAT credit on inputs used in exempted final products. The appellant contended that this payment should be considered equivalent to non-availment of credit, citing a Supreme Court judgment.

Issue 4: Applicability of Section 11A and Rule 6(3) of CCR, 2004
The authorities invoked Section 11A and Rule 6(3) of CCR, 2004 for recovery of the demanded amount, as the appellant collected 10% of the sale price of exempted goods but did not credit it to the exchequer. The appellant challenged the applicability of Section 11A and Rule 6(3) in their defense.

Issue 5: Financial hardships plea
No plea of financial hardships was found in the stay application submitted by the appellant, which could have impacted the decision on waiver of pre-deposit and stay of recovery.

Issue 6: Pre-deposit requirement and stay application decision
After considering the submissions, the Tribunal found no prima facie case for the appellant against the dues adjudged, leading to the requirement of pre-deposit for the balance amount demanded. The appellant was directed to pre-deposit Rs. 10,82,807/- within six weeks, with the amount already paid being counted towards pre-deposit. The decision included waiver and stay in respect of the penalty imposed and the balance amount of interest, subject to the pre-deposit made by the appellant.

This detailed analysis of the judgment covers the issues involved, the arguments presented by the appellant and the authorities, and the final decision rendered by the Tribunal regarding the waiver of pre-deposit and stay of recovery sought by the appellant.