9911796707
TMI Blog2015 (2) TMI 555X X X X Extracts X X X X X X X X Extracts X X X X ..... ted as not maintainable and thereafter the order-in-original has been upheld. The appellant had availed CENVAT credit of Rs. 10,22,090/- during the period from June 2010 to March 2011 out of which Rs. 9,09,520/- was held as ineligible. Out of the tax liability of Rs. 17,44,092/- for the period from July 2010 to March 2011 they had utilized CENVAT credit of Rs. 7,57,237/- for payment of service tax. Show-cause notice was issued proposing to recover the irregularly availed CENAVT credit of Rs. 9,09,520/- realizing in confirmation of the demand of the amount plus interest and imposition of penalty also. The appellants filed an appeal against this decision and it is submitted by the consultant on behalf of the appellant that they had not filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion in such haphazard and improper manner as and when they choose to do so, without observing the legal provisions in this regard which are binding on them. There is no explanation also on their part with proper basis urged for allowing the same, if permissible, in the given circumstances. They cannot be allowed to file application belatedly for waiver of the penalties imposed on them (involving long and unexplained lapse and gap of more then seven months) in such manner for consideration by this Authority. They cannot be allowed to profit from their own lapse and error. The provisions of Section 35F of the CEA are mandatory' if waiver application is not filed along with (simultaneously) the appeal memorandum (where penalty imposed is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat contrary to the observations of the learned Commissioner about the legal position being settled, the settled legal position is that even if a stay application has not been filed, before rejecting the appeal the appellant should be given an opportunity to file such an application and consider the same rather than rejecting the appeal. In this case the application for waiver of pre-deposit filed has been rejected on the ground of delay without citing any legal provisions to support the observation of the Commissioner. In the absence of any legal provision prescribing the time limit for filing stay application and having regard to the fact that appellant had filed application for waiver of pre-deposit before the appeal was being considered ..... X X X X Extracts X X X X X X X X Extracts X X X X
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