2014 (3) TMI 669 - AT - Central Excise

Waiver of pre deposit - Denial of benefit of Cenvat credit - Held that - Prima facie, If the appellant had availed Cenvat credit in terms of the decisions contrary to the decision in Vandana Global by any stretch of imagination malafide intention to conceal or suppress the facts cannot be attributed to the appellant. As such, taking into account that only part of the demand would be within limitation - Conditional stay granted.

Summary

Issues:
Prayer to dispense with the condition of pre-deposit of confirmed amount due to denial of Cenvat credit for iron and steel items used in power plant expansion.

Analysis:
The judgment revolves around the appeal to waive the pre-deposit condition of Rs.6,70,15,133/- confirmed against the applicant due to denial of Cenvat credit for iron and steel items used in expanding their thermal power plant. The applicant argued that they disclosed all credits in their ER 1 return during the relevant period, indicating no suppression. They cited various decisions supporting their stand, including Ambuja Cement Ltd. and Salasar Steel and Power Ltd., to demonstrate that unconditional stay was granted to similar appellants in similar situations.

Analysis:
The Tribunal noted the applicant's compliance with disclosing credits in their returns and the favorable decisions prior to the Vandana Global case. The judgment acknowledged that if the appellant availed Cenvat credit based on precedents contrary to Vandana Global, it could not be considered malafide. Considering that only a part of the demand fell within the limitation period, the Tribunal directed the appellant to deposit a specific sum within four weeks. Upon compliance, the pre-deposit condition for the remaining amount was waived, and recovery stayed during the appeal's pendency.

Analysis:
The Tribunal ultimately dispensed with the pre-deposit condition for the entire demand, as it was deemed barred by limitation. Consequently, the recovery of duty and penalty was stayed. The judgment allowed the stay petition on these terms, providing relief to the appellant.