2015 (1) TMI 989 - AT - Central Excise

Waiver of pre deposit - Denial of Cenvat credit on HIPS and GPPS - Imposition of interest and penalty - Held that - Commissioner (Appeals) by Stay Order dated 10.06.2013 directed to a pre-deposit an amount on or before 29.06.2013 and, any failure to comply with such pre-deposit, the appeal shall stand dismissed automatically. The learned Counsel submits that they have filed the application for modification before 29.06.2013. We find that the said modification stay application was rejected by the letter dated 10.07.2013 issued by the Superintendent of Central Excise. Section 35A of the Act has given power to Commissioner (Appeals) to decide appeals, which cannot be disposed of by a communication of the Superintendent of Central Excise. We have noticed that the application for modification of the stay order was not considered by the Commissioner (Appeals). - we set aside the impugned order. The matter is remanded back to Commissioner (Appeals) to decide the application for modification of the stay order in accordance with law and thereafter, dispose of the appeal as per provisions of Section 35A of the Act. - Decided in favour of assessee.

Summary

Issues:
- Denial of Cenvat credit on HIPS and GPPS
- Demand of Cenvat credit amount
- Dismissal of appeal due to non-compliance of stay order
- Application for modification of stay order rejection
- Authority to decide appeals under Section 35A of the Act

Analysis:

The appellants, engaged in manufacturing Injection Moulding components, faced a dispute over denial of Cenvat credit on certain materials and a demand of &8377;50,12,830 along with interest and penalty. The Commissioner (Appeals) directed a pre-deposit of &8377;25,00,000 through a stay order, which if not complied with, would lead to automatic dismissal of the appeal. The appellant's application for modification of the stay order was rejected, resulting in the dismissal of the appeal due to non-compliance.

The main contention was whether the application for modification of the stay order could be rejected by the Superintendent of Central Excise (Appeals) and if the appeal filed under Section 35 of the Act could be decided through a stay order issued under Section 35F. The Tribunal noted the provisions of Section 35 and 35F, emphasizing the obligation to deposit duty demanded or penalty levied pending appeal, with provisions for waiver under certain conditions.

The Tribunal highlighted the substantive right to appeal under Section 35 of the Act and the obligation under Section 35F to deposit dues, with the possibility of seeking waiver. It was established that failure to comply with a stay order should lead to the Commissioner (Appeals) passing an order disposing of the appeal, not disposing of the appeal through a stay order, as done in this case.

The Tribunal also addressed the rejection of the modification stay application by the Superintendent of Central Excise and emphasized that the power to decide appeals lies with the Commissioner (Appeals), not with other authorities. The Tribunal differentiated the present case from a previous case law cited by the Revenue representative, where the Tribunal dismissed the appeal for non-compliance with a stay order issued separately from the final order.

In conclusion, the Tribunal set aside the impugned order and remanded the matter back to the Commissioner (Appeals) to decide the application for modification of the stay order and subsequently dispose of the appeal in accordance with the provisions of Section 35A of the Act. The appeal was allowed by way of remand, with a directive for proper opportunity of hearing to the appellants.