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2023 (9) TMI 1061 - HC - Central ExciseMaintainability of appeal - requirement of pre-deposit - demand of wrongly availed CENVAT Credit of CENVAT duty including Education cess and Secondary and Higher Secondary Cess - HELD THAT - It is manifest that the demand-cum-show cause notice dated 30.07.2013 has not attained finality in law in absence of any subsequent order confirming the demand as proposed to be levied under the show cause notice. As there is no demand, the question of pre-deposit does not arise at all. Therefore, the impugned order dated 14.07.2023, passed by the CESTAT, Kolkata Bench, in so far as the direction of making payment of pre-deposit of Rs. 3,50,000/-(Rupees Three Lacs Fifty Thousand Only), being 10% of the contested amount of Rs. 35,34,992/-(Rupees Thirty Five Lacs Thirty Four Thousand Nine Hundred and Ninety-Two Only), does not stand to scrutiny and is set aside. The appeal filed by the appellant against the order dated 14.07.2023, shall be registered and decided as per law after providing opportunity of hearing to both parties - Appeal allowed.
Issues:
The issues involved in the judgment are the appellant's entitlement to claim CENVAT Credit, the validity of the demand-cum-show cause notice, the requirement of pre-deposit for admission of appeal, and the maintainability of the appeal before the CESTAT. Entitlement to Claim CENVAT Credit: The appellant, a partnership concern, filed Central Excise returns and claimed refund of duty paid in accordance with Notification No. 20/2007-CE. A demand-cum-show cause notice was issued alleging wrongful availment of CENVAT Credit. The respondent dropped the proceedings, which were later set aside by the Commissioner (Appeals). The appellant argued that no liability rests upon them as the demand-cum-show cause notice did not attain finality in the absence of a subsequent order confirming the demand. The Revenue did not prefer any appeal for confirmation of the demand after the initial order was set aside. Validity of Demand-Cum-Show Cause Notice: The dispute revolved around the applicable documents for availing CENVAT Credit under Rule 9 of the CENVAT Credit Rules, 2004. The appellant contended that no pre-deposit was required under Section 35 of the CEA as the case did not involve a dispute regarding duty or penalty, but rather the relevant documents. The respondent argued that the demand proposed under the show cause notice stands confirmed, necessitating a pre-deposit of 10% of the contested amount for challenging the demand. Requirement of Pre-Deposit for Admission of Appeal: The CESTAT directed the appellant to deposit a specific amount as a pre-condition for admission of the appeal. The appellant challenged this requirement, asserting that no pre-deposit was necessary as the demand-cum-show cause notice did not attain finality in law. The Court found that as there was no demand confirmed, the question of pre-deposit did not arise, setting aside the direction for pre-deposit. Maintainability of Appeal Before CESTAT: The respondents contended that a revision under Section 35 EE of the CEA was maintainable against the appellate order, but the appellant chose to file an appeal before the CESTAT instead. The Court considered the submissions and concluded that the demand-cum-show cause notice did not attain finality, thus the appeal before the CESTAT was allowed to proceed without the requirement of pre-deposit. This judgment clarifies the legal position regarding the entitlement to claim CENVAT Credit, the validity of demand-cum-show cause notices, the necessity of pre-deposit for admission of appeals, and the maintainability of appeals before the CESTAT.
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