2014 (1) TMI 1520 - HC - Central Excise

Availment of CENVAT Credit - Area of the factory as well as the consumption of electricity does not suggest manufacturing of the final products, as shown by the petitioner, for which CENVAT Credit is availed - Non compliance of pre deposit order - Held that - There is no quarrel to the proposition that it is within the discretionary powers of the Tribunal to grant total waiver of the duty demanded and the penalty levied provided it records the reasons relating to undue hardship of the applicant as well as safeguard the interest of the revenues. If the decision of the Tribunal is accepted by the department in some other cases and have been uniformly applied, taking a different view, without indicating the factual difference and/or the special facts may lead to unsettle the settled proposition. From the show cause notice as well as the finding made by the Tribunal it would be evident that the authorities found that there is existence of a factory with plants and machinery. What is stated by the department is that the aforesaid plants, machinery and other infrastructure cannot support the manufacturing activities to such a large extent as has been shown by the petitioner to have been done during the relevant period. Therefore, in view of the aforesaid facts, this Court does not find that it could at all be said that there was never any manufacturing activities undertaken by the petitioner in the said factory but leads to presumption that some manufacturing activities have been undertaken and in absence of any cogent and counter evidence it would further lead to a presumption that the closure was made, as has been contended by the petitioner - approach of the Tribunal, in dealing with the application for waiver of the pre-condition deposit, is not at all appreciable. This Court, therefore, quashes and sets aside the order dated 24th February 2012. Since the second order dated 15th May 2012 is dependent upon the order dated 24th February 2012, the same cannot stand independently and is also accordingly quashed and set aside - Decided in favour of assessee.

Summary

Issues:
1. Challenge to orders imposing duties and penalties based on CENVAT Credit claim.
2. Delay in communication of orders leading to delay in approaching the Court.
3. Dispute regarding closure of factory and entitlement to total waiver.
4. Tribunal's discretion in granting total waiver and imposition of pre-condition deposit.
5. Lack of justification for imposing 25% deposit and absence of recorded reasons.
6. Quashing of orders and granting total waiver to the petitioner.
7. Direction to expedite appeal hearing before the Tribunal.

Analysis:
1. The case involves a challenge to orders imposing duties and penalties on the petitioner for allegedly claiming CENVAT Credit improperly. The department contended that the factory did not show manufacturing activities supporting the claimed credits.

2. The petitioner argued that the orders were communicated late, justifying the delay in approaching the Court. The Revenue disputed this claim, but the Court found the delay reasonable for consideration.

3. A crucial issue was the dispute over the factory's closure and the entitlement to total waiver. The petitioner argued that closure was proven, citing Tribunal decisions supporting total waiver in such cases.

4. The Court discussed the Tribunal's discretionary power in granting total waiver and the need to safeguard revenue interests. It emphasized the importance of consistency in decisions to avoid unsettling established principles.

5. The Court found the imposition of a 25% deposit unjustified, as the Tribunal failed to provide reasons for departing from the settled proposition of granting total waiver in case of factory closure.

6. Consequently, the Court quashed the orders imposing duties and penalties and granted total waiver to the petitioner. It directed the Tribunal to expedite the appeal hearing, emphasizing the need for a reasoned order within a specified timeframe.

7. The Court clarified that its decision did not influence the appeal's merit, leaving the authority free to decide independently. The writ application was disposed of without costs.