2014 (4) TMI 44 - AT - Central Excise

Waiver of pre deposit - Denial of benefit of cenvat credit of duty - Held that - prior to the amendment of Explanation 2 to Rule 2(k) of the CENVAT Credit Rules, 2004, this Court in the case of commissioner of Central Excise vs. Ispat Industries Limited (2007 (7) TMI 633 - BOMBAY HIGH COURT) has held that credit of duty paid on angles, channels and plates etc. which are used in the construction of supporting structure would be available. Though the Larger Bench in the case of Vandana Properties has held that the amendment to explanation (2) to Rule 2(k) of the Cenvat Credit Rules, 2004 by notification dated 7th July 2009 is retrospective in nature, the issue is debatable. In any event, dispute in the present case relates to the period prior to 7th July 2009 and, therefore, in our opinion, it is a fit case to hear the matter on merits without insisting on any pre-deposit - Stay granted.

Summary

Issues:
1. Denial of cenvat credit of duty paid in the manufacture of capital goods.
2. Invocation of longer period of limitation for demand confirmation.
3. Justification of pre-deposit condition.

Analysis:
1. The judgment addressed the denial of cenvat credit of duty paid in the manufacture of capital goods to the appellant. The duty was confirmed against the applicant by not allowing the benefit of cenvat credit for prefabricated items used in the manufacturing process. The Tribunal relied on the decision of the Larger Bench in the case of Vandana Global. The appellant argued against the invocation of a longer period of limitation from April 2007 to March 2009, stating that during the relevant period, Tribunal decisions favored them and the law was subsequently changed by the Larger Bench. The Tribunal noted the appellant's argument and the decision in the case of Ambuja Cement vs. C.C.E., Mumbai, where the Hon'ble Bombay High Court set aside the direction to deposit a part amount.

2. Regarding the invocation of a longer period of limitation for confirming the demand, the Tribunal considered the amendment to Explanation 2 of Rule 2(k) of the CENVAT Credit Rules, 2004. The Tribunal referred to the decision of the Hon'ble Bombay High Court in the case of commissioner of Central Excise vs. Ispat Industries Limited, where it was held that credit of duty paid on certain items used in construction would be available. The Tribunal acknowledged the debatable nature of the retrospective effect of the amendment and the relevance of the period in question, which was before the amendment date. Citing the decision of the Hon'ble Bombay High Court and subsequent Tribunal stay orders, the Tribunal found it appropriate to hear the matter on merits without insisting on any pre-deposit.

3. The judgment concluded by dispensing with the condition of pre-deposit of duty and penalty, as well as staying the recovery during the pendency of the appeal. The Tribunal considered the decisions of higher courts and the specifics of the case to justify the waiver of the pre-deposit condition based on the circumstances surrounding the denial of cenvat credit and the invocation of a longer period of limitation for the demand confirmation.