2018 (9) TMI 729 - AT - Central Excise

CENVAT Credit - inputs utilized for supply of finished goods to developers of special economic zone - period prior to 31st December 2008 - Held that - The amount in dispute pertains to the goods cleared between May 2007 to November 2008 when rule 6 of CENVAT Credit Rules,2004 providing for certain exceptions did not extend to developers of special economic zones - Also, when the matter came up before the Tribunal for stay of the order of the first appellate authority, the entire amount of pre-deposit has been waived and the appeal admitted for hearing. In the circumstances in which the appeal has been admitted, the failure to deposit the amount directed by the first appellate authority becomes redundant - the dismissal of appeal on grounds of failure to comply with the pre-deposit requirement does not sustain. Impugned order set aside - matter remanded back to the first appellate authority for decision on merits.

Summary

Issues:

- Availment of CENVAT credit on inputs for supply of finished goods to developers of special economic zone prior to 31st December 2008.
- Dismissal of appeal due to failure to pre-deposit stipulated portion of disputed duty.

Analysis:

1. The appeal by M/s Signum Fire Protection (India) Pvt Ltd challenged the order-in-appeal by the Commissioner of Central Excise Customs (Appeals), Nagpur, regarding the availment of CENVAT credit on inputs used for supplying finished goods to developers of special economic zones before 31st December 2008. The appeal was dismissed in the impugned order due to the failure of the appellant to pre-deposit the required portion of the disputed duty amounting to &8377; 35,41,733/- along with interest and penalty under rule 15 of CENVAT Credit Rules, 2004.

2. The appellant contended that the issue had been decided in their favor by the decisions of the Hon'ble High Court of Karnataka in specific cases. The Learned Counsel argued citing judgments in Commissioner of Central Excise & Service Tax, Bangalore v. Forsoc Chemicals (India) Pvt Ltd [2015 (318) ELT 240 (Kar.)] and Commissioner of Central Excise, Bangalore – III v. Lotus Power Gears (P) Ltd [2017 (346) ELT 347 (Kar.)].

3. The Authorized Representative highlighted that the lower authority's order did not delve into the merits of the appeal, indicating a procedural flaw in the decision-making process.

4. Upon review, it was noted that the goods in dispute were cleared between May 2007 to November 2008, a period when the exceptions under rule 6 of CENVAT Credit Rules, 2004 did not apply to developers of special economic zones. Additionally, during the Tribunal's consideration for a stay of the first appellate authority's order, the requirement for the entire pre-deposit amount was waived, and the appeal was accepted for further hearing.

5. Given the circumstances of the appeal being admitted for hearing and the waiver of the pre-deposit amount, the failure to comply with the pre-deposit requirement was deemed inconsequential. Consequently, the dismissal of the appeal solely based on the failure to pre-deposit the stipulated amount was found unsustainable.

6. Consequently, the impugned order was set aside, and the matter was remanded back to the first appellate authority for a decision on the merits of the case, ensuring a fair consideration of the substantive issues involved.