2014 (2) TMI 965 - AT - Central Excise

Waiver of predeposit of duty - captive consumption - Cement cleared to units in Special Economic Zone (SEZ) without payment of excise duty - Applicants had also claimed exemption on clinker captively consumed in manufacture of cement as per Notification No.67/95-CE dated 16.3.1995 - Exemption denied - Held that - demand has been confirmed on clinker manufactured as an intermediate product in the course of manufacture of cement which has been cleared to units in SEZ, for the reason that as per the proviso to Notification No. 67/95-CEd dated 16.3.95 the benefit of captive consumption exemption is not available to inputs used in or in relation to the manufacture of final products which are exempt from whole of the duty of excise or additional duty of excise leviable thereon or chargeable to nil rate of duty thereon other than those cleared - prima facie proviso to Notification No.67/95-CE is not attracted against the assessee - Following decision of Dalmia (Bharat) Cements Ltd. Vs. CCE 2008 (10) TMI 466 - CESTAT, CHENNAI - Stay granted.

Summary

Issues: Application for waiver of predeposit of duty, Exemption benefit denial, Consideration of earlier Tribunal decisions, Stay order based on previous cases

In this judgment by the Appellate Tribunal CESTAT MUMBAI, the applicant filed an application seeking waiver of predeposit of duty amounting to Rs.14,98,511/- along with interest and penalty. The applicants, engaged in cement manufacturing, had cleared cement to units in a Special Economic Zone (SEZ) without paying excise duty and claimed exemption on clinker used in cement manufacture as per Notification No.67/95-CE. The exemption benefit was denied in the impugned order. The Tribunal considered the records and noted that in similar cases, the requirement of predeposit was waived in previous Stay Orders. The Tribunal also referenced a Mumbai Bench decision in the case of CCE, Thane Vs. Tiger Steel Engineering (I) Pvt. Ltd., which was stayed by the Hon'ble Bombay High Court. Citing a previous decision in the case of Dalmia (Bharat) Cements Ltd. Vs. CCE, the Tribunal granted waiver of predeposit and stayed the recovery of dues during the appeal process, as the proviso to Notification No.67/95-CE was not considered applicable against the assessees in the current case. The Tribunal, after considering submissions from both sides and following the earlier decision, allowed the stay application and waived predeposit of the duties, interest, and penalties.

This judgment primarily revolves around the application for waiver of predeposit of duty, the denial of exemption benefit, the consideration of earlier Tribunal decisions, and the granting of a stay order based on previous cases. The Tribunal analyzed the facts and legal provisions to determine the applicability of the exemption and the necessity of predeposit, ultimately relying on previous decisions to grant the waiver and stay the recovery of dues pending the appeal process.