2012 (7) TMI 353 - AT - Central Excise

Applications for waiver of pre-deposit along with Education Cess and equal amount of penalty - the contention of the applicant that their appeals were dismissed by ld.Commissioner(Appeals) for non-compliance with the provisions of section 35F of Central Excise Act and cases were not decided on merit - Held that - Undisputedly the ld.Commissioner has not decided the issue on its merits as on similar facts and circumstances the demands for subsequent period have been set aside by ld.Commissioner(Appeals) vide his order - thus after waiving the requirement of pre-deposit the matter is to be remanded back to ld.Commissioner(Appeals) to decide the issue on its merits without insisting for pre-deposit - Appeal allowed by way of remand - in favour of assessee.

Summary

Issues:
1. Application for waiver of pre-deposit of Central Excise duty and penalty under section 11AC of Central Excise Act, 1944.
2. Dismissal of appeals by ld.Commissioner(Appeals) for non-compliance with section 35F.
3. Factory closure during the material time, availing CENVAT Credit, job work, and duty payment.
4. Previous orders setting aside demands for subsequent periods.
5. Remand of the matter to ld.Commissioner(Appeals) for deciding the issue on merits without pre-deposit.

Analysis:
1. The applicant filed applications seeking waiver of pre-deposit of Central Excise duty amounting to Rs.45,04,408 along with Education Cess of Rs.89,375 and penalty under section 11AC of the Central Excise Act, 1944. The contention was that their appeals were dismissed by the ld.Commissioner(Appeals) due to non-compliance with section 35F, without deciding the cases on merit.

2. The applicant argued that their factory was closed during the relevant period. They received inputs, availed CENVAT Credit, sent goods for job work, and upon completion, brought back the goods to the factory for clearance after payment of duty. They highlighted that similar proceedings for subsequent periods had been set aside by the ld.Commissioner(Appeals) in a previous order.

3. The Appellate Tribunal observed that the appeals could be disposed of at that stage since the ld.Commissioner had not addressed the merits of the case. Considering the previous orders setting aside demands for subsequent periods, the Tribunal decided to remand the matter to the ld.Commissioner(Appeals) for a fresh decision on the merits without requiring pre-deposit. It was emphasized that the appellant should be given a reasonable opportunity of hearing.

4. The Tribunal allowed the appeal by way of remand and disposed of the stay petition. The decision was pronounced and dictated in the open court by Shri S.K.Gaule. The judgment focused on the procedural aspects of compliance with statutory provisions and the need for a thorough examination of the merits of the case without imposing undue financial burdens on the appellant.