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2012 (10) TMI 495 - HC - Central ExciseWaiver of pre-deposit cenvat credit - alleged that Jammu unit actually cleared what was an input which was not excisable; the Jammu unit paid duty in the guise of clearing DFMO with the fraudulent intent to claim a refund in terms of Notification 56/2002-C.E. and to enable the Taloja unit to avail of Cenvat credit Held that - During the period April 2005 to December 2006 (which also covers the period of dispute in the present Case), the Jammu unit manufactured DFMO out of Crude Menthol Oil and had correctly paid duty and taken a refund under the exemption notification - during period in dispute, the Jammu unit cleared Crude Menthol Oil without subjecting it to the process of manufacture pre-deposit waived
Issues:
1. Application for waiver of pre-deposit under Section 35F of the Central Excise Act, 1944. 2. Allegations against the Jammu unit regarding the clearance of goods to the Taloja unit. 3. Dispute regarding the liability of the Taloja unit in the application for waiver of pre-deposit. 4. Justification for directing the Taloja unit to deposit an additional amount of Rs. 1.93 Crores. Issue 1: Application for Waiver of Pre-Deposit The appeal arose from an order of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) directing the Appellant to deposit Rs. 1.93 Crores out of a total Cenvat credit of Rs. 3.93 Crores alleged to have been wrongfully availed of. The substantial question of law was whether there was justification for this requirement under Section 35F of the Central Excise Act, 1944. Issue 2: Allegations against the Jammu Unit The Jammu unit faced allegations of clearing goods to the Taloja unit under an area-based exemption Notification 56/2002-C.E. The Revenue contended that the Jammu unit cleared raw material instead of the intended product, leading to demands for duty payment and penalties. However, an order by the Commissioner of Central Excise at Jammu supported the Jammu unit's compliance with duty payment requirements, which the Tribunal accepted, estopping the Revenue from making further allegations. Issue 3: Dispute Regarding Taloja Unit's Liability The Taloja unit faced a dispute over its liability in the application for waiver of pre-deposit. The unit had taken Cenvat credit on raw materials supplied by the Jammu unit and utilized it for manufacturing final products. Despite payments made by both units during the investigation, the Tribunal directed the Taloja unit to deposit an additional Rs. 1.93 Crores, which was contested by the Appellant. Issue 4: Justification for Additional Deposit by Taloja Unit The Appellant argued that since the Jammu unit had already paid a significant amount and the Tribunal found a prima facie case in favor of the Jammu unit, the demand against the Taloja unit was protective. The High Court, considering the deposits made and the Appellant's undertaking not to claim a refund pending the appeal, dispensed with the requirement for the Taloja unit to deposit the balance of Rs. 1.93 Crores, thereby disposing of the appeal. The High Court directed the Tribunal to expedite the appeal's disposal within six months from the date of the order.
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