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2012 (8) TMI 138 - AT - Central ExciseWrong utilization of CENVAT Credit - claim of exemption Notification No.64/1995-C.E. dated 16.03.1995 - Held that - Looking into the ER1 returns filled by assessee no clear picture can be made out whether credit of tax availed is correct or not and whether it is in respect of a dutiable product or exempted product - thus it cannot be claimed that the assessee has disclosed the correct facts to the department - assessee has failed to make out a case for complete waiver of pre-deposit - direction to pre-deposit 50% of the duty demanded.
Issues: Stay application against order-in-appeal, Availment of CENVAT credit, Time bar for demand, Maintaining separate account for CENVAT credit.
Stay Application Against Order-in-Appeal: The stay application was filed against the order-in-appeal passed by the Commissioner of Central Excise & Customs. The appellant, a manufacturer of propeller shaft, had availed services from a third party and paid service tax on the commission under Business Auxiliary Services. A show-cause notice was issued for recovery of an amount wrongly utilized as service tax credit during a specific period. The appellant contested the demand, but it was confirmed by the lower appellate and adjudicating authority along with interest and penalty. The appellant argued that they had clearly indicated the availment of CENVAT credit in their excise and service tax returns, suggesting that the demand was time-barred and they were not liable to pay. Availment of CENVAT Credit: The appellant claimed to have disclosed the availment of CENVAT credit in their returns. However, the Revenue contended that specific details regarding the credit were not mentioned in the ER1 returns, making it difficult to ascertain whether the credit was for exempted or dutiable products. It was also pointed out that the appellant had not maintained a separate account for availing CENVAT credit as required by the CENVAT Credit Rules, 2004. The Tribunal observed that based on the information provided in the returns, it was not possible to determine the correctness of the tax credit availed by the appellant, indicating a lack of disclosure of correct facts to the department. Time Bar for Demand: The appellant argued that since the show-cause notice was issued in February 2010, the demand was time-barred, and they were not obligated to pay. However, the Tribunal did not accept this argument and directed the appellant to make a pre-deposit of 50% of the duty demanded within a specified period. The Tribunal found that the appellant had not established a case for a complete waiver of the pre-deposit due to the lack of clarity in the disclosure of CENVAT credit details. Maintaining Separate Account for CENVAT Credit: The Tribunal noted that the appellant had not maintained a separate account for availing CENVAT credit for payment of duty concerning dutiable or exempted products as required by the CENVAT Credit Rules, 2004. This failure to comply with the rules further weakened the appellant's case for a complete waiver of the pre-deposit. Ultimately, the Tribunal directed the appellant to make a partial pre-deposit, and upon compliance, the recovery of the balance amount of duty, interest, and penalty was stayed during the pendency of the appeal.
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