2015 (10) TMI 1796 - AT - Central Excise

Waiver of pre deposit - Duty demand - compounded levy scheme - Held that - Case of the appellant is that the duty was paid on the basis of actual production as they never opted for compounded levy scheme. That for the period under closure no duty can be demanded even under compounded levy as per the case law of Gayatri Iron Industries vs. CCE Lucknow (2012 (2) TMI 441 - CESTAT NEW DELHI). Learned AR could not bring any documentary evidence to the notice of the bench that such a declaration was in fact filed by the appellant except to a mention made in the OIO passed by the Adjudicating authority. Appellant has received information through RTI to the effect that no such declaration is available with the department. In view of the facts available on record and the relied upon case law, appellant has made out a prima facie case for complete waiver of the confirmed demands and penalties - Stay granted.

Summary

Issues:
1. Stay application filed by the appellant challenging the order of the Commissioner (Appeals).
2. Dispute regarding duty payment based on actual production or under compounded levy scheme.
3. Allegation of non-receipt of closure intimation by the department.
4. Lack of documentary evidence regarding the filing of a declaration under compounded levy scheme.

Analysis:
1. The appellant filed a stay application against the order of the Commissioner (Appeals) rejecting their appeal. The appellant argued that they paid duty based on actual production following a Gujarat High Court order. The appellant claimed to have informed the department about the closure of their unit and paid duty on actuals for a specific period. The appellant contended that no declaration under the compounded levy scheme was filed, citing a CESTAT Delhi judgment. The Revenue, however, disputed the closure intimation and asserted that a declaration under the compounded levy scheme was submitted by the appellant.

2. The Tribunal examined the arguments and evidence presented by both parties. The appellant maintained that duty was paid based on actual production and not under the compounded levy scheme. The Tribunal noted the absence of documentary evidence proving the filing of a declaration under the compounded levy scheme by the appellant. The appellant obtained information through RTI confirming the unavailability of such a declaration with the department. Relying on the case law cited by the appellant, the Tribunal found a prima facie case for waiving the confirmed demands and penalties. Consequently, the Tribunal granted a stay on the recovery of the confirmed dues and penalties until the appeal's final disposal.

3. In conclusion, the Tribunal granted the stay application filed by the appellant, suspending the recovery of confirmed dues and penalties. The decision was based on the appellant's assertion of paying duty on actual production, the absence of evidence supporting the submission of a declaration under the compounded levy scheme, and the lack of closure intimation received by the department. The Tribunal found merit in the appellant's arguments and legal references, leading to the temporary relief granted in favor of the appellant.