Hon'ble Subhash Chandra Nigam,J.
Heard Sri A.P. Mathur, learned counsel for the appellant, Sri R.K. Raghuwansi and perused the record.
Byway of the present appeal, the appellant is challenging the order of the Customs, Excise and Service Tax Appellate Tribunal, New Delhi passed on 28.08.2009 on the application under Section 35F of the Central Excise Act.
The brief facts of the case are that the appellant is engaged in the manufacturing of gas cylinders, pressure vessels and heat exchangers for industrial use falling under Chapter 73 and 84 of the Central Excise Tariff Act, 1985. According to the appellant, it is liable to pay the Excise Duty on the manufacturing of gas cylinders, vessels and heat exchanger and also entitled for the benefit of Cenvat Credit. It appears that under the rules, the appellant was liable to pay the excise duty due within a period of 30 days alongwith interest and the balance amount through Cenvat Credit Account. It appears that for some period the appellant could not deposit the amount of duty within 30 days and therefore under the rule 8 (3A) the appellant was required to deposit the duty on each clearance and was not entitle for the benefit of the Cenvat Credit. However for the period June 2006 to March 2007 and April 2007 to March 2008 the appellant deposited the duty through PLA A/c and also through Cenvat Credit Account. According to the Revenue, the appellant had committed contravention the provisions of Rule 8(3-A) of the Central Excise Rules and accordingly, a show cause notice was given. According to the Central Excise Authority, after committing default, the appellant was liable to pay the duty on each clearance which the appellant failed to pay and therefore, show cause notice was issued under Section 11(A) of the Act. The appellant filed the reply and contended that the entire amount of duty for the aforesaid period has been paid and there is nothing due against the appellant. However, since the appellant has contravened the provisions of Rule 8(3-A) of the Central Excise Rules, in respect of the aforesaid period, the demand of Rs.1,28,96,280/- and Rs.1,55,72,295 has been confirmed. Against the said order, the appellant filed the appeal before the Tribunal alongwith application under Section 35F of the Central Excise Act for waiver of pre- deposit of the duty and the penalty. The Tribunal vide impugned order has directed the appellant to pay Rs.25 lacs within a period of eight weeks and pre-deposit of the balance amount of duty, penalty and interest have been waived. The recovery has also been stayed subject to deposit of the aforesaid amount.
Learned counsel for the appellant submitted that though there is contravention of the provision of Rule 8(3-A) of Central Excise Rules but the entire amount of duty has been paid. He submitted that as per para 6 of the adjudication order, it is apparent that during the period of June 2006 to March 2007 and April 2007 to March 2008 Rs.61,07,965.00 and Rs.55,16,681.00 respectively has been paid through PLA account and rest amount i.e. Rs.67,88,315.00 and Rs.1,00,55,614.00 respectively through Cenvat Credit Account. Therefore, the appellant may not be asked to deposit any amount. He further submits that in similar situation the Tribunal in the case of the appellant itself vide order dated 28.08.2009 has waived the pre-deposit of duty of the entire amount in appeal nos. 168-169/2008-SM and therefore in the present case also the entire pre-deposit may be waived.
Sri R.K. Raghuwansi, advocate appearing on behalf of the respondent supported the order of the Tribunal. He submitted that the appellant himself admits that there is contravention of rule 8(3-A) and therefore, the appellant may be asked to deposit the amount directed by the Tribunal.
Having heard learned counsel for the parties and perused the impugned order. From the perusal of the observations made by Adjudicating Authority in para- 6 of the order, it appears that the entire amount has been deposited, though, it is true that there is contravention of the provisions of Rule 8(3-A) of the Central Excise Rules. However, prima-facie, it appears that for the period in dispute, entire amount of duty stand deposited and Tribunal in the case of appellant itself in appeal Nos. 168-169/ 2008-SM has waived the requirement of pre-deposit. The order of the Tribunal dated 28.8.2009 requires modification. Accordingly, we reduce the amount to be deposited from Rs.25 Lacs to 5 Lac which the appellant will deposit within 30 days.
We further direct the Tribunal to decide the appeal no.1728 of 2009 expeditiously and preferably within a period of two months from the date of presentation of the certified copy of this order which the appellant undertakes to file within two weeks.
With the aforesaid observation, the appeal is finally disposed of.
Order Date :- 13.1.2010 kkg