2010 (3) TMI 644 - AT - Central Excise

Pre-deposite by way of reversal of cenvat credit - case of India Casting Co. v. CEGAT, New Delhi reported in 1998 (104) E.L.T. 17 (All.), Held that - the assessee is entitled to make predeposit by way of reversal from the Cenvat Account.

Summary

Issues:
1. Whether predeposit of duty and penalty can be made by reversing credit from the Cenvat Account.
2. Interpretation of the requirement for predeposit in cash or through PLA.
3. Applicability of decisions by the Hon'ble Allahabad High Court and the Hon'ble Bombay High Court on the issue of predeposit.

Analysis:
1. The appellants sought waiver of predeposit of duty and penalty, which the Commissioner (Appeals) required them to deposit for hearing the appeal. The appellants predeposited an amount by reversing the credit from the Cenvat Account. The Commissioner (Appeals) contended that predeposit should be made in cash or through PLA, not by reversing credit. The appellants cited the decision of the Hon'ble Allahabad High Court supporting predeposit through credit reversal, which was accepted by the Tribunal. Consequently, the remaining predeposit was waived, and the stay petition was allowed.

2. The Revenue relied on a decision by the Hon'ble Bombay High Court regarding the refund of predeposit. However, the Tribunal noted that the issue in the Bombay High Court case was different from the present case, where the question was about predeposit, not refund. The Tribunal emphasized the Allahabad High Court's decision supporting predeposit via credit reversal, which was the method used by the appellants. The Tribunal set aside the Commissioner (Appeals)'s order and remanded the matter for a decision on the appeal's merits after acknowledging the compliance with the stay order through credit reversal.

3. The Tribunal clarified that the Commissioner (Appeals) had not decided the appeal on its merits. By deeming the credit reversal as fulfilling the stay order's conditions, the Tribunal overturned the previous decision and instructed the Commissioner (Appeals) to hear the appeal on its merits after providing the appellants with an opportunity for a hearing. The appeal was allowed through remand, emphasizing the importance of compliance with the stay order conditions and the method of predeposit through credit reversal as recognized by the Tribunal.