2013 (8) TMI 26 - AT - Central Excise

Appellant ordered partial deposit, waived pre-deposit, balance recovery stayed pending appeal.

The Tribunal directed the appellant to deposit a partial amount within a specified period while allowing the waiver of pre-deposit for the remaining ... Extended period of limitation – Show-cause Notice issued on 06.9.2011 seeking to reverse the cenvat credit for the period October 2006 to July 2011 – Held that:- Extended period of limitation, prima-facie unsustainable for the reason that the Revenue authorities, on an identical issue has issued a show cause notice on 08.09.2009 invoking the extended period, in that case also for reversing the amount of cenvat credit taken during the period 2005-06. Cenvat Credit on GTA services – For demand within the limitation period – Held that:- Liability arises for which the issue needs to be gone into detail as to what would be place of removal in the contract and whether the appellant was responsible for the goods cleared and delivered to their purchasers - Appellant has not made out a case of complete waiver of pre-deposit of the amounts involved inasmuch as the same is within the limitation period – Directed to make deposit of Rs. 20,00,000/-(Rupee Twenty Lakhs only) Issues:1. Waiver of pre-deposit of an amount along with interest and penalty imposed.2. Validity of show cause notice and limitation period for reversing cenvat credit.3. Interpretation of the contract for determining the place of removal and liability for goods delivered.Analysis:1. The appellant filed a stay petition seeking the waiver of pre-deposit of a substantial amount along with interest and penalty confirmed by the adjudicating authority. The amounts were related to the appellant availing cenvat credit on GTA services, which the authority deemed liable under Section 66A of the Finance Act, 1994.2. The appellant's counsel argued that the show cause notice issued for reversing the cenvat credit was time-barred to a certain extent. They pointed out a similar notice issued by the department earlier and relied on the decision in the case of Nizam Sugar Factory vs. Collector of Central Excise to support the limitation argument. The Tribunal found the invocation of the extended period of limitation prima facie unsustainable due to the previous notice issued by the Revenue authorities on the same issue.3. The appellant contended that even within the limitation period, the reversal of cenvat credit was unjustified. They highlighted the contractual terms indicating that the goods were delivered on a FOR destination basis, making the purchaser responsible once the goods reached their destination. The Tribunal acknowledged the need for a detailed examination of the contract terms to determine the place of removal and the appellant's liability for the goods delivered.4. After considering the submissions from both sides and reviewing the records, the Tribunal directed the appellant to deposit a partial amount within a specified period while allowing the waiver of pre-deposit for the remaining balance. The decision was based on the finding that the appellant did not establish a case for complete waiver due to the amounts being within the limitation period. The recovery of the balance amount was stayed pending the final disposal of the appeal.