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2014 (2) TMI 283 - HC - Central ExciseWaiver of per deposit - Non compliance of Section 35F - Held that - according to the appellant the requirement of pre-deposit as directed by the Tribunal had been complied with, by way of debiting the amount from Cenvat Credit Account of its Ghaziabad factory and by such an act, the order of the Tribunal for pre-deposit had been complied with. Such a contention is to be determined by the Tribunal and cannot be based upon the mere declaration by the petitioner. Hence, it is necessary to remit the matter back to the Customs, Excise & Service Tax Appellate Tribunal for determination of such an issue - Decided in favour of assessee.
Issues Involved:
Challenge to order dated 14-5-2012 passed by CESTAT Kolkata and order dated 6-9-2012 in Miscellaneous Application No. E/M/211/2012 for restoration of appeal. Detailed Analysis: Issue 1: Challenge to Order dated 14-5-2012 by CESTAT Kolkata - The petitioner challenged the order dated 14-5-2012 passed by CESTAT Kolkata dismissing the appeal for non-compliance with the provisions of Section 35F of the Central Excise Act, 1944. - Petitioner's counsel argued that the absence on the date of the order was due to lack of intimation of the subsequent date by the Tribunal. - Petitioner claimed compliance with pre-deposit requirements by reversing credit entry in the Entry Book under Rule 9 of Cenvat Credit Rules, 2004 at its Ghaziabad unit. - Cited judgment of High Court of Punjab and Haryana allowing duty payment through CENVAT credit. - Petitioner contended that reversal of CENVAT credit at Ghaziabad unit was in compliance with Tribunal's directions. Issue 2: Challenge to Order dated 6-9-2012 in Miscellaneous Application - The petitioner also challenged the order dated 6-9-2012 dismissing the application for restoration of the appeal. - Petitioner argued that the reversal of CENVAT credit at the Ghaziabad unit was permissible under Rule 12A(4) of CENVAT Credit Rules, 2004 and Rule 2(ea) of Central Excise Rules, 2002. - Revenue's counsel contended that reversal in a separate Commissionerate was impermissible under the rules. - Revenue argued that non-compliance with pre-deposit requirements justified the appeal's rejection. Court's Decision and Analysis: - The Court considered arguments from both sides and noted the importance of compliance with pre-deposit requirements. - Referred to a Kolkata High Court judgment emphasizing the need for meaningful opportunities before dismissal of appeals. - The Court decided to remit the matter back to CESTAT for determining compliance with pre-deposit requirements. - Orders dated 14-5-2012 and 6-9-2012 were quashed, and the matter was remitted to CESTAT for further consideration. - Petitioner directed to appear before CESTAT with a certified copy of the order for determination of compliance. - No coercive action to be taken against the petitioner until the matter is resolved by CESTAT. - The writ petition was disposed of with these directions, allowing for an urgent certified copy of the order. This detailed analysis outlines the legal arguments, court's decision, and the reasoning behind remitting the matter back to CESTAT for further consideration, ensuring compliance with pre-deposit requirements and upholding principles of natural justice.
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