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2017 (9) TMI 1422 - AT - Central ExcisePre-deposit - whether mandatory deposit of seven and half percent as per Section 35F (i) of the Central Excise Act 1944, is required to be paid in cash or the same can be paid from CENVAT Credit Account maintained by the appellants? - Held that - in Section 35, it is not specifically mentioned that amount has to be deposited only by way of cash payment - the view taken by the First Appellate Authority, that deposit u/s 35F (i) cannot be made from CENVAT Credit Account, is not the correct appreciation of law so long as the CENVAT Credit is permissible for utilisation as per Rule 3(4) of the CCR, 2004. Appeal filed by the appellant is allowed by way of remand to the First Appellate Authority with directions to decide the appeal on merits without insisting on any further pre-deposit - appeal allowed by way of remand.
Issues: Interpretation of Section 35F of the Central Excise Act, 1944 regarding mandatory deposit requirements.
Analysis: The appeal was filed against an Order-in-Appeal dated 15.02.2016, where the First Appellate Authority disposed of the appeal stating that the mandatory deposit of duty under Section 35F (i) of the Central Excise Act, 1944, had been paid from the CENVAT Account. The appellant argued that the deposit could be made from the CENVAT Credit Account and was not restricted to cash payments only. The Revenue, represented by a Superintendent, supported the findings of the First Appellate Authority. The central issue in the case was whether the mandatory deposit required by Section 35F (i) had to be made in cash or could be paid from the CENVAT Credit Account maintained by the appellants. Upon examination, it was noted that the relevant Section 35F did not explicitly state that the deposit had to be made in cash. The First Appellate Authority had referred to Rule 3 (4) of the CENVAT Credit Rules, 2004, which allowed for the utilization of CENVAT Credit in certain situations. It was highlighted that if CENVAT Credit was found inadmissible, the ultimate action would be to reverse the credit, eliminating the need for a cash pre-deposit. Similarly, if duty demand allowed for payment through CENVAT Credit, it could be debited from the account. The procedure at the CESTAT Registry in Kolkata considered payments from the CENVAT Credit Account as due payments for the purpose of Section 35F. The judgment clarified that as long as CENVAT Credit was permissible for utilization under Rule 3(4) of the CENVAT Credit Rules, the deposit under Section 35F (i) could be made from the CENVAT Credit Account. Therefore, the decision of the First Appellate Authority, which held that the deposit could not be made from the CENVAT Credit Account, was deemed incorrect in light of the law. The appeal was allowed, and the case was remanded to the First Appellate Authority with directions to decide the appeal on its merits without requiring any further pre-deposit. The appellant was granted a reasonable opportunity for a hearing, and both parties were permitted to produce evidence in their favor. The appeal was allowed by way of remand, keeping all issues open for further consideration.
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