2015 (10) TMI 1682 - AT - Central Excise

Maintainability of the appeal - Waiver of pre deposit - Section 35F - Mandatory pre deposit - Held that - purported reversal of credit of ₹ 5,63,66,047/- cannot be considered, as the appellant has issued invoices and their customers would have already taken credit of the same. We find these issues will have to be gone into detail at the time of final hearing and cannot be decided at this stage. - keeping in view the provisions of Section 35F as enumerated above, as also the amount confirmed in the impugned order, the appellant is directed to deposit 7.5% of the duty involved minus the amount of ₹ 3,44,773/- already reversed. Since the appellant has not deposited the said amount, the appeal is not maintainable. However, in the interest of justice, the appellant is directed to pay the said amount within a period of four weeks - Partial stay granted.

Summary

Issues:
- Maintainability of appeal under Section 35F of the Central Excise Act due to non-deposit of disputed duty amount
- Disallowance of CENVAT credit and demand of duty
- Reversal of credit by the appellant
- Trading activity and demand of duty on exempted goods
- Interpretation of Section 35F and deposit requirements

Analysis:
1. Maintainability of Appeal under Section 35F:
The appellant received a show cause notice questioning the maintainability of their appeal for not depositing 7.5% of the disputed duty demand as required by the amended Section 35F of the Central Excise Act. The issue revolved around the appellant's failure to comply with the deposit requirement.

2. Disallowance of CENVAT Credit and Duty Demand:
The dispute involved disallowance of CENVAT credit amounting to a substantial sum and a demand of duty on trading activities. The appellant contested that they had already reversed a portion of the amount in question and provided justifications for their actions.

3. Reversal of Credit by the Appellant:
The appellant argued that they had already reversed a significant amount while clearing goods and maintained that the remaining disputed amount had been utilized by their customers who availed credit. The respondent, however, contended that the reversal was irrelevant as the goods might not have been received by the recipients of the invoices.

4. Trading Activity and Demand on Exempted Goods:
The appellant's trading activities were scrutinized, and a demand was raised on exempted goods. The respondent highlighted the proportionate credit between dutiable and exempted goods, emphasizing the substantial demand due to trading activities.

5. Interpretation of Section 35F and Deposit Requirements:
The Tribunal analyzed the provisions of Section 35F, emphasizing the deposit requirements for maintaining an appeal. The Tribunal directed the appellant to deposit 7.5% of the duty involved, minus the amount already reversed, within a specified timeframe to ensure compliance with the statutory provisions.

In conclusion, the judgment primarily focused on the appellant's failure to comply with the deposit requirements under Section 35F, the disputed duty demands, and the complexities surrounding the disallowed CENVAT credit and trading activities. The Tribunal's decision underscored the importance of adhering to statutory provisions for the maintainability of appeals in excise matters.