9911796707
TMI Blog2015 (12) TMI 251X X X X Extracts X X X X X X X X Extracts X X X X ..... ling the cenvat credit of the excise duty paid on the inputs as per the provisions of Cenvat Credit Rules, 2004. On 31.03.2007 they opted for the SSI exemption under notification no. 8/03-CE and one of the conditions for availing of this exemption is that during the period when the nil rate of duty is availed, no Input duty cenvat credit would be availed. 1.2 As per the provisions of Sub Rule 2 of Rule 11, a manufacturer who opts for exemption from whole of the duty of excise leviable on the goods manufactured by him under a notification based on value or quantity or clearances in a financial year and who has been taking Cenvat credit on inputs or input services, before exercising such option is required to pay an amount equal to the cenva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als) directed certain pre-deposit for hearing the appeal for compliance with the provisions of section 35F and since the appellant could not comply with the Commissioner (Appeals) stay order, their appeal was dismissed for non-compliance with the provisions of section 35F. 1.4 The appellant thereafter filed an appeal to Tribunal against this order and the Tribunal vide final order no. 1053/2011-Ex dated 14.12/2011 waived the requirement of pre-deposit and remanded the matter to Commissioner (appeals) for decision on merits without insisting for any pre-deposit. 1.5 In Denovo proceedings, the Commissioner (Appeals) vide order in Appeal dated 26.12.2013 again confirmed the cenvat credit demand of Rs. 16,99,988/- along with interest and equa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant cannot be accused of having suppressed any relevant facts from the Department, that in view of this the SCN is time barred, that in any case, when the Tribunal in its earlier stay order dated 14.12.2011 after taking a prima facie view that the appellant have strong case in their favour have waived the requirement of pre-deposit, in second round of proceedings, no pre-deposit should be ordered, in view of the judgment of Honble Delhi High Court in the case of Super Tyres (P) Ltd. vs UOI reported in 2005 (186) ELT 49 Del., and that the appellant have strong prima facie case in their favour on merits as well as on limitations and hence, the requirement of pre-deposit may be waived for hearing of the appeal and recovery thereof may be sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the provisions of Rule 11(2), and that the limitation of one year would count from the date of knowledge and hence SCN is within time. He, therefore, pleaded that this is not a case of waiver from the requirement of pre-deposit. 5. We have considered the submissions from both the sides and perused the records. There is no dispute that the appellant had opted for SSI exemption under notification no. 8/03-CE on 31.03.2007 for the next financial year. As per the provisions of Rule 11(2) of the Cenvat Credit Rules, 2004, when a manufacturer opts for exemption from the whole of duty of excise leviable on the goods manufactured by him, under a notification based on value or quantity of clearances in a financial year and who has been taking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had availed the cenvat credit during period from 01.04.2007 to 18.07.2007 they should not have been allowed the SSI exemption and accordingly they should be treated as having opted for the exemption only w.e.f. 19.07.2007. We do not accept this plea as when the appellant had given clear option for availing of the SSI exemption w.e.f. 01.04.2007 they should be treated as having started availing of this exemption w.e.f. 01.04.2007 and therefore, the provisions of Rule 11(2) would become applicable. Therefore, on merits the appellant do not have prima facie case in their favour. 6. As regards the plea of limitation, the appellant being SSI unit were required to file quarterly return and the return for April 2007 to June 2007 quarter was requi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the favour of the appellant had waived the requirement of pre-deposit, in the second round of proceedings no pre-deposit should be ordered, we are of the view that in the first round of proceedings, the Commissioner (Appeals) had not examined the issue on merits and had dismissed the appeal for non-compliance with the provisions of section 35F but in these proceedings, the issue has been examined by the Commissioner (Appeals) on merits. 8. In view of this we are the prima facie view that the judgment of Delhi High Court in the case of Super Tyres (P) Ltd. vs UOI (supra) is not applicable to the facts of this case. We are, therefore, of the prima facie view that this is not a case for total waiver. We, therefore direct the appellant to dep ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
