2014 (4) TMI 1028 - HC - Central Excise

Waiver of pre deposit - Whether the Tribunal was justified in demanding Rs. Six lacs in compliance of Section 35F of the Central Excise Act, 1944. on the basis of demand which was not raised in the show cause notice and the reasoning given in the notice for raising the demand of Rs. 2,26,80,122/- has not been considered by the Commissioner, plausible and sufficient - Held that - Duty demand of Rs. 2,13,09,972/- was dropped, except Rs. 13,70,150/- against M/s Sunita Ispat (P) Ltd., and the penalty of like amount. The appellant deposited Rs. 3,35,023/-. The CESTAT required the appellant to make a further deposit of Rs. 6 lacs as a condition for waiver of the remaining amount - when in the show cause notice the duty was not demanded on the basis of unaccounted purchase of scrap, the demand on that basis could not be confirmed in the Order-in-Original. There must be a demand in the SCN to be confirmed in the order - stay granted.

Summary

Issues:
1. Interpretation of Section 35F of the Central Excise Act, 1944 regarding demand not raised in the show cause notice.
2. Compliance with principles of natural justice in directing deposit on created demand.
3. Consideration of already deposited duty as sufficient security.
4. Justification of passing order on stay-cum-waiver application without addressing raised contentions.

Analysis:

1. The appellant raised concerns regarding the demand of duty not being mentioned in the show cause notice, questioning the justification of the Tribunal's decision to demand Rs. Six lacs under Section 35F of the Central Excise Act, 1944. The Court acknowledged the error in confirming a duty demand that was not originally raised in the notice, emphasizing the necessity for a demand in the show cause notice to be confirmed in the final order.

2. The Court noted that a substantial portion of the duty demand was dropped, with only a specific amount remaining against a particular entity. Despite the appellant depositing a significant sum, the Tribunal required an additional deposit as a condition for waiver. The appellant argued against the sacrifice of natural justice principles in directing the deposit, highlighting the discrepancy between the demand in the show cause notice and the final order.

3. Regarding the consideration of the duty already deposited as sufficient security, the Court agreed with the appellant's contention that the deposited amount should serve as a safeguard for the Revenue's interest. The Court emphasized that goods duly reflected in prescribed records cannot be removed surreptitiously, indicating that the deposited duty should be deemed adequate security.

4. The Court addressed the issue of passing an order on the stay-cum-waiver application without adequately dealing with the appellant's contentions raised during the hearing. The Court directed that the Tribunal should not insist on the appellant depositing an additional amount as a precondition to hear the appeal on its merits, effectively disposing of the Central Excise Appeal with this directive.