2015 (1) TMI 1188 - AT - Central Excise

Default in payment of duty - Wrongful availment of CENVAT credit despite restriction under Rule 8(3)(A) - Imposition of penalty - Held that - counsel relies upon the decision of the Hon ble High Court of Gujarat in Special Civil Application No.3344 of 2014 to submit that Rule 8(3)(A) relating to non-utilisation of CENVAT credit has been quashed and therefore there cannot be any demand. He also relies upon the decision of this Tribunal in the case of Allianz Steel Ltd. Vs. CCE, Indore 2013 (3) TMI 404 - CESTAT NEW DELHI wherein unconditional waiver of predeposit and stay against recovery was granted. Since the decision of the Hon ble High Court of Gujarat 2014 (12) TMI 585 - GUJARAT HIGH COURT and the decision in the case of Allianz Steel Ltd. were not available to the original adjudicating authority, I consider it appropriate that the matter should be remanded for fresh consideration at this stage itself. Accordingly, the impugned order is set aside and the matter is remanded to the original adjudicating authority for fresh consideration in accordance with law after giving reasonable opportunity to the appellant to present their case. - Appeal disposed of.

Summary

Issues: Default in payment of duty, Utilization of CENVAT credit, Imposition of penalty, Demand for wrongly availed CENVAT credit.

Default in payment of duty:
The appellant, a manufacturer of aluminum containers, defaulted in payment of duty from June 2010 onwards, having utilized CENVAT credit for payment of duty during the default period against Rule 8(3)(A) of Central Excise Rules, 2002. The original adjudicating authority dropped the proceedings citing precedent decisions of the Tribunal. The Revenue filed an appeal seeking imposition of a penalty of &8377; 2 lakhs and demand for wrongly availed CENVAT credit.

Utilization of CENVAT credit:
The appellant's counsel relied on the decision of the Hon'ble High Court of Gujarat in Special Civil Application No. 3344 of 2014, which quashed Rule 8(3)(A) related to non-utilization of CENVAT credit, arguing that there should be no demand. Additionally, reference was made to the Tribunal's decision in the case of Allianz Steel Ltd. Vs. CCE, Indore [2012(286) ELT 633 (Tri. Del.)], where unconditional waiver of predeposit and stay against recovery was granted. Due to the unavailability of these decisions to the original adjudicating authority, the matter was remanded for fresh consideration, providing the appellant with a reasonable opportunity to present their case in accordance with the law.

Imposition of penalty and Demand for wrongly availed CENVAT credit:
The Tribunal set aside the impugned order and remanded the matter to the original adjudicating authority for fresh consideration, considering the recent legal developments and decisions not available during the initial proceedings. The stay application was also disposed of in light of the remand for fresh consideration.