2014 (11) TMI 670 - HC - Central Excise

Waiver of pre deposit - Denial of CENVAT Credit - Capital goods - Whether the Hon ble Tribunal was correct in directing the appellant to pre-deposit ₹ 40 lakhs for hearing the appeal and to stay the operation of the impugned order - Held that - Tribunal has not foreclosed the issues raised by the appellant on the prima facie view of the earlier order passed by the Tribunal dated 8-5-2013, which is said to have been passed following the earlier decision of this Court in C.M.A. No. 3101 of 2005, dated 13-12-2012, which is distinguishable on facts. In any event, the Tribunal has exercised its discretion and directed the appellant to deposit a sum of ₹ 40 lakhs - taking note of the earlier order passed by this Court and the case of the appellant herein, this Court is of the view that the pre-deposit amount shall be reduced to ₹ 25 lakhs. Upon such deposit, the balance adjudged dues shall remain waived and recovery thereof stayed till the pendency of the appeal before the Tribunal - Partial stay granted.

Summary

Issues:
1. Direction to pre-deposit Rs. 40 lakhs for hearing the appeal and stay the operation of the impugned order.
2. Failure to establish a prima facie case on merits.
3. Alleged oversight of previous decisions by the Tribunal.

Analysis:

Issue 1: Direction to Pre-Deposit Rs. 40 Lakhs
The appellant, engaged in cement manufacturing, was denied Cenvat credit on certain materials by the Department. The Customs, Excise and Service Tax Appellate Tribunal (CESTAT) directed the appellant to pre-deposit Rs. 40 lakhs for hearing the appeal and stay the operation of the impugned order. The Tribunal reasoned that the appellant used the materials for building supporting structures, not as capital goods themselves. The appellant challenged this direction, citing previous favorable judgments in their own case. The High Court acknowledged the Tribunal's discretion but reduced the pre-deposit amount to Rs. 25 lakhs, considering the appellant's submissions and previous orders.

Issue 2: Failure to Establish Prima Facie Case
The Tribunal found that the appellant failed to establish a prima facie case on merits, leading to the direction for the pre-deposit. The appellant argued that the Tribunal overlooked previous decisions by the High Court and Tribunal in their favor. The High Court noted that the Tribunal did not foreclose the issues raised by the appellant and had discretion in directing the pre-deposit. While acknowledging the earlier orders, the High Court reduced the pre-deposit amount based on the appellant's contentions and the specific circumstances of the case.

Issue 3: Alleged Oversight of Previous Decisions
The appellant contended that the Tribunal overlooked previous decisions by the High Court and Tribunal that favored them. The High Court, after considering the submissions and previous orders, found that the Tribunal had not disregarded the issues raised by the appellant. The High Court differentiated the current case from previous judgments and upheld the Tribunal's discretion in directing the pre-deposit, albeit reducing the amount based on the appellant's arguments and the specific details of the case.

In conclusion, the High Court modified the direction for pre-deposit, reducing the amount to Rs. 25 lakhs, and upheld the Tribunal's decision while considering the appellant's contentions and the specific circumstances of the case.