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TMI Blog2016 (11) TMI 1094X X X X Extracts X X X X X X X X Extracts X X X X ..... #8377; 33,78,20,452/- through account current under Rule 8(3A) of Central Excise Rules, 2002 read with Section 11A of the Central Excise Act, 1944 and held that the utilization of Cenvat credit was in contravention of Rule 3(4) of the Cenvat Credit Rules, 2004. The applicant approached Tribunal against this order and a show-cause notice was issued by the Registry as to why their appeal should not be dismissed as they had not pre-deposited 7.5% of the confirmed duty liability. The Tribunal vide Order No. M/4660/2015/EB, dated 23-9-2015 was pleased to grant four weeks time to deposit 7.5% of disputed amount failing which appeal will be liable to be dismissed. The applicant vide its letter dated 16-10-20015 complied with direction of the Tribunal. The applicant has now made the present application under Rule 41 of CESTAT (Procedure) Rules, 1982 seeking direction of the Tribunal to permit re-credit of the duty paid to the Cenvat credit account. 2. Learned Counsel for the applicant argued that the applicant had discharged their entire duty liability through Cenvat credit and 7.5% that they have deposited under Section 35F results in 107.5% of duty. The applicant relied on the Circula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court, for the period of default in discharge of monthly duty liability beyond 30 days from the due date, duty on clearances made during the forfeiture period, would be required to be paid through PLA and if the duty had been paid through Cenvat Credit, the same would be required to be paid through PLA by permitting the re-credit of the amount debited in Cenvat Credit amount. Moreover, from the language of Rule 8(3A), it is clear that it is a non obstante provision which operates notwithstanding anything contained in sub-rule (1) sub-rule (4) of Rule 3 of the Cenvat Credit Rules, 2004 and hence provisions of this sub-rule will have overriding effect over the provisions of the Cenvat Credit Rules, 2004. The intention of this sub-rule (3A) of Rule 8 is to punish an assessee defaulting in discharge of monthly duty liability beyond a period of 30 days from the due date by denying the utilization of Cenvat Credit and making him pay the duty consignment-wise without utilizing the Cenvat Credit. There appears to be justification for such a penal provision as in most of such cases, while a defaulting assessee has not paid duty on the goods cleared during a particular month, on the basi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch interim orders, as it may deem fit in the facts and circumstances of the case. In addition to this, the power of Appellate Tribunal to confirm, modify or annul the decision or order appealed against also takes in its fold to pass such interim orders as are necessary in order to aid the main relief sought for in the appeal. To put it in other words, the interim relief is granted to preserve in status quo the rights of the parties (See Kihoto Hollohan). In Madan Gopal s case, it has been pointed out that the interim orders are passed in aid of the main relief. Therefore, it is quite inherent in the Appellate power and more so in the case of the CEGAT to pass such interim orders as are necessary for the purpose of ensuring that the main relief sought in the appeal is available to the party at the end of the proceeding. The fact that Section 129E only provides for relieving the appellant from the undue hardship that would be caused to him in depositing the duty and interest as demanded or penalty as levied, does not in any way take away the inherent power of the Appellate Tribunal to pass such interim orders as are necessary. This is only restated in Rule 41 of the Customs, Excise a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arance of goods made earlier. It is noticed that the provisions of refund in respect of duty and in respect of pre-deposit are substantially different. As regards refund of pre-deposit made under Section 35F is concerned, it is covered by Section 35FF. The said deposits do not take the shape of duty till such time the same are adjusted against confirmed duties. So far as refund of duty is concerned, the same is governed by Section 11B and the provisions for the interest and refund are significantly different. The Circular dated 16-9-2014 in Para 5 prescribes the procedure for refund of pre-deposit as follows : - 5. Refund of pre-deposit : 5.1 Where the appeal is decided in favour of the party/assessee, he shall be entitled to refund of the amount deposited along with the interest at the prescribed rate from the date of making the deposit to the date of refund in terms of Section 35FF of the Central Excise Act, 1944 or Section 129EE of the Customs Act, 1962. 5.2 Pre-deposit for filing appeal is not payment of duty. Hence, refund of pre-deposit need not be subjected to the process of refund of duty under Section 11B of the Central Excise Act, 1944 or Section 27 of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, be used for the purpose of indicating the amount of deposit made, which shall be verified by the appellate authority before registering the appeal. 6.5 As per existing instructions, a copy of the appeal memo along with proof of deposit made shall be filed with the jurisdictional officers. 7. Procedure for refund : 7.1 A simple letter from the person who has made such deposit, requesting for return of the said amount, along with a self-attested Xerox copy of the order-in-appeal or the CESTAT order consequent to which the deposit becomes returnable and attested Xerox copy of the document evidencing payment of such deposit, addressed to Jurisdictional Assistant/Deputy Commissioner of Central Excise and Service Tax or the Assistant/Deputy Commissioner of Customs, as the case may be, would suffice for refund of the amount deposited along with interest at the rate specified. 7.2 Record of deposits made under Section 35F of the Central Excise Act, 1944 or section 129E of the Customs Act, 1962 should be maintained by the Commissionerate so as to facilitate seamless verification of the deposits at the time of processing the refund claims made in case of favourable orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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