2014 (3) TMI 235 - AT - Central Excise

Waiver of pre deposit - Cenvat credit on the bottles used for marketing soft drinks which get destroyed in the manufacturing process or transport of the goods - Held that - Commissioner (Appeals) has asked for pre-deposit on an issue which is already decided in favour of the assessee 2008 (12) TMI 568 - CESTAT, NEW DELHI . In such a situation, Commissioner (Appeals) should have exercised the discretion vested upon him under section 35F of the Central Excise Act more judiciously. In such cases, litigants have no option other than to agitate the matter at higher levels which is being done in the present proceeding. I am of the view that this is a case where there was no justification to call for any pre-deposit for hearing the appeal before Commissioner (Appeals). - stat granted.

Summary

Issues:
1. Pre-deposit requirement under section 35F for appeal
2. Discretion of Commissioner (Appeals) in ordering pre-deposit
3. Cenvat credit on bottles used for soft drinks marketing

Analysis:

Issue 1: Pre-deposit requirement under section 35F for appeal
The judgment addresses the appeal filed against the Commissioner (Appeals) order, which required a pre-deposit that was not made by the appellant. The Tribunal waived the pre-deposit requirement under section 35F and proceeded with hearing the appeal on its merits.

Issue 2: Discretion of Commissioner (Appeals) in ordering pre-deposit
The appellant argued that the issue of Cenvat credit on bottles used for marketing soft drinks had been decided in their favor by the Tribunal previously. The Commissioner (Appeals) had ordered pre-deposit despite this, leading to the appeal. The Tribunal found that in such cases where the issue is already decided in favor of the assessee, the Commissioner (Appeals) should have exercised discretion more judiciously under section 35F. The Tribunal held that there was no justification for pre-deposit and remitted the matter back to the Commissioner (Appeals) for a decision on merits without insisting on pre-deposit.

Issue 3: Cenvat credit on bottles used for soft drinks marketing
The appellant contended that the issue of Cenvat credit on bottles used for soft drinks marketing had been decided in their favor by the Tribunal previously and that the Commissioner (Appeals) did not consider this aspect when ordering pre-deposit. The Tribunal agreed with the appellant, stating that the Commissioner (Appeals) should have considered the previous decision and exercised discretion judiciously. The Tribunal set aside the order for pre-deposit and remitted the matter back to the Commissioner (Appeals) for a decision on merits without requiring pre-deposit.

In conclusion, the Tribunal found that the Commissioner (Appeals) should have considered the previous decisions in favor of the appellant and exercised discretion judiciously in the matter of pre-deposit. The Tribunal waived the pre-deposit requirement and remitted the case back to the Commissioner (Appeals) for a decision on merits without insisting on pre-deposit under section 35F.