2016 (2) TMI 455 - AT - Central Excise

Default in payment of duty - requirement of Clearance/removal of the goods without utilising the CENVAT Credit and making payment of duty in cash - Held that - The original authority had confirmed the demands in March, 2010 and the appeal was disposed by the Ld. Commissioner(Appeal) in September, 2010, whereas, the BIFR order was passed on 07th April, 2011. Now, the claim of the appellant is that they had complied with the direction/order of the BIFR, hence as per the scheme sanctioned, they are entitled to waiver of penalty and interest. However, both sides agree that all these evidences could not be examined by the Ld. Commissioner (Appeals) and need to be scrutinised afresh so as to ascertain the claim of the appellant that pursuant to the rehabilitation scheme ordered by the BIFR, the same had been complied with and accordingly they are eligible to the benefit of penalty and interest in the light of this Tribunal s decision in Andhra Cements Ltd. s case (2009 (2) TMI 147 - CESTAT, BANGALORE ). In the result, the impugned order is set aside and the appeals are remanded to the Ld. Commissioner (Appeals) for deciding the issue afresh in the light of subsequent developments in the case. All issues are kept open. Needless to mention that a reasonable opportunity of hearing be granted to the Appellant.

Summary

Issues:
Violation of duty liability, imposition of penalty, appeal against Order-in-Appeal, compliance with BIFR rehabilitation scheme, waiver of interest and penalty, remand for fresh examination.

Violation of Duty Liability:
The appellant, engaged in manufacturing paper boards, defaulted in discharging monthly duty liability for a specific period, leading to the requirement of duty payment on each consignment without utilizing CENVAT Credit. Show Cause Notices were issued, resulting in duty confirmation, penalty imposition, and interest recovery under Section 11AB of CEA, 1944. Appeals were made to the Ld. Commissioner (Appeals) against the orders, which were rejected, prompting the present appeals.

Compliance with BIFR Rehabilitation Scheme:
The appellant submitted that their Application under SICA was pending before BIFR when the impugned order was passed. The BIFR later sanctioned a rehabilitation scheme allowing payment of outstanding duty within three years, utilization of CENVAT Credit, and waiver of interest and penalty for three years from scheme sanction. The appellant claimed to have paid all dues within the stipulated period, seeking waiver of interest and penalty based on the BIFR scheme. The Ld. Advocate referred to a Tribunal decision and agreed to remand the case for examination since the BIFR order was subsequent to the Ld. Commissioner (Appeals) order.

Remand for Fresh Examination:
Both parties agreed that the Ld. Commissioner (Appeals) did not consider the BIFR order due to its timing after the appeal decision. The Tribunal found that the appellant's compliance with the BIFR scheme could impact the waiver of penalty and interest. Consequently, the impugned order was set aside, and the appeals were remanded to the Ld. Commissioner (Appeals) for a fresh decision considering the subsequent developments. All issues were kept open, emphasizing a fair hearing opportunity for the Appellant. The appeals were allowed by way of remand for further scrutiny.