2015 (10) TMI 1319 - AT - Central Excise

Waiver of pre deposit - Duty paid through CENVAT Credit - Held that - Since portion of Sub rule (3A) relevant to the issue has been held struck down by Hon ble High Court of Gujarat 2014 (12) TMI 656 - GUJARAT HIGH COURT I consider that Commissioner (Appeals) can hear the appeals without insisting on any pre-deposit. Therefore without going into the merits of the case or the issue involved, both the orders-in-appeal are set aside and the matters are remanded to Commissioner (Appeals) with a direction to hear the appeals without insisting on any pre-deposit. Needless to say the appellant shall be given reasonable opportunity to present their case before the matter is finally decided - Appeal disposed of.

Summary

Issues Involved:
1. Non-compliance with pre-deposit requirement of 50% duty demanded leading to dismissal of appeals by Commissioner (Appeals).
2. Default in payment of duty, subsequent rectification by making cash payment, and utilization of cenvat credit.
3. Applicability and impact of Rule 8(3A) of Central Excise Rules.
4. Interpretation of the judgment of the Hon'ble High Court of Gujarat in a similar case.

Analysis:

1. The appeals were dismissed by the Commissioner (Appeals) due to non-compliance with the pre-deposit requirement of 50% of the duty demanded. The Tribunal noted that since the issue involved was common in both appeals, they were taken together along with miscellaneous and stay applications. The matter had to be remanded to determine if the appellant needed to make any pre-deposit. Therefore, the miscellaneous application, stay applications, and appeals were all considered together.

2. The miscellaneous application sought to present evidence that the appellant had deposited an amount earlier but defaulted subsequently. The Tribunal admitted the additional evidence and disposed of the miscellaneous application. The core issue in both appeals was the default in duty payment during a specific period, rectified by cash payment. However, the appellant had utilized cenvat credit instead of paying in cash as required by Rule 8(3A) of the Central Excise Rules.

3. The Tribunal referenced a judgment of the Hon'ble High Court of Gujarat in a similar case, where a portion of Rule 8(3A) was struck down. The High Court's decision indicated that orders based on the struck-down portion of the rule could not stand. Considering this, the Tribunal held that the Commissioner (Appeals) could hear the appeals without insisting on any pre-deposit. Therefore, without delving into the merits of the case, both orders-in-appeal were set aside, and the matters were remanded to the Commissioner (Appeals) for a fresh hearing without requiring a pre-deposit.

4. The Tribunal emphasized that the appellant should be given a fair opportunity to present their case before a final decision is made. Consequently, the miscellaneous application, stay applications, and appeals were disposed of based on the direction to hear the appeals without any pre-deposit requirement. The Tribunal's order was pronounced in open court, concluding the judgment.

This detailed analysis covers the key issues addressed in the judgment, providing a comprehensive understanding of the legal proceedings and decisions made by the Tribunal.