2015 (9) TMI 201 - AT - Service Tax

Cenvat Credit - Duty paying document - input services - sr. no was not pre-printed but hand written on Invoice - Waiver of pre deposit - Mandatory pre deposit - Held that - Adjudicating authority disallowed the credit, following the decision of the Hon ble Andhra Pradesh High Court in the case of CHANDRA LAXMI TEMPERED GLASS CO. PVT. LTD. 2008 (7) TMI 257 - HIMACHAL PRADESH HIGH COURT and the CBEC Supplementary Instructions. The learned Advocate relied upon the decision of Single Member Bench of the Tribunal. It is found that the Hon ble High Court, after considering the various aspects of the interpretation of the statute, observed that pre-printed of the invoices are required. Hence, the Applicant failed to make out a prima facie case for waiver of the pre-deposit of entire amount of duty along with interest and penalty. - Partial stay granted.

Summary

Issues:
Delay in filing appeal, mandatory pre-deposit under Section 35F of Central Excise Act, 1944, maintainability of stay petition, disallowance of CENVAT Credit based on hand-written serial numbers on invoices.

Analysis:
1. Delay in filing appeal: The Applicant sought condonation of a 27-day delay in filing the appeal, citing a judgment from the Hon'ble Gujarat High Court allowing withdrawal of a Writ Petition with liberty to appeal before the Tribunal. The delay was condoned based on this judgment.

2. Mandatory pre-deposit under Section 35F: The Revenue argued for a mandatory pre-deposit of 7.5% of the duty amount under the amended provision of Section 35F for appeals filed after August 2014. The Applicant contested this, referring to a judgment from the Hon'ble Kerala High Court and various decisions of the Supreme Court and Tribunal. The Tribunal, following the directive of the Gujarat High Court, overruled the objection and proceeded with the stay petition.

3. Maintainability of stay petition: The Tribunal considered the decision of the Hon'ble Kerala High Court, which stated that appeals filed under the provisions of the Finance Act, 1994, before August 2014 would not be subject to the amended provisions. Relying on this, the Tribunal allowed the stay petition to proceed for hearing.

4. Disallowance of CENVAT Credit: The Adjudicating authority disallowed CENVAT Credit amounting to Rs. 1,60,93,316 based on hand-written serial numbers on invoices, contrary to CBEC Supplementary Instructions requiring pre-printed serial numbers. The Applicant argued for waiver of the pre-deposit, citing judgments and decisions supporting their case. However, the Tribunal found that the Applicant failed to establish a prima facie case for waiver and directed a pre-deposit of Rs. 12,00,000 within four weeks, with waiver of the remaining amount till appeal disposal.

In conclusion, the Tribunal addressed the issues of delay in filing appeal, mandatory pre-deposit under Section 35F, maintainability of stay petition, and disallowance of CENVAT Credit based on hand-written serial numbers on invoices, providing a detailed analysis and decision on each aspect in accordance with relevant legal judgments and instructions.