2014 (11) TMI 824 - HC - Central Excise

Court Upholds Tribunal's Decision on Waiver of Demand & Penalty in Cenvat Credit Case

INCORPORATED DAUB VERHOEVEN LTD. Versus UNION OF INDIA

INCORPORATED DAUB VERHOEVEN LTD. Versus UNION OF INDIA - 2014 (308) E.L.T. 457 (Cal.) Issues:Challenge to order of Customs, Excise and Service Tax Appellate Tribunal (CESTAT) on waiver of pre-deposit condition.Analysis:The petitioners challenged the CESTAT's order directing them to deposit 25% of the demand and 10% of the personal penalty. The petitioners argued that they had paid an excess amount than the demand mentioned in the show cause notice. The Department alleged illegal availment of Cenvat credit due to the petitioners' lack of manufacturing activity. The petitioners contended that most persons involved corroborated their statements, except for a few. They argued that the person whose statement went against them should have been cross-examined. The authorities initiated proceedings against the petitioners based on the alleged wrongful availment of Cenvat credit. The Court concurred with the respondent's submission that the core issue was the petitioners' lack of manufacturing activities, leading to the wrongful availment of Cenvat credit. The Tribunal found the petitioners had made an arguable case and granted a waiver of 75% of the demand and 90% of the penalty imposed on the director, along with a total waiver of the statutory penalty.The Court emphasized that Cenvat credit, if availed properly, is akin to cash. It noted that the petitioners' manufacturing activities were a crucial factual issue to be decided by a fact-finding authority. The Tribunal's discretion in granting the waiver was considered reasonable and not perverse. The Court cautioned against interfering with discretionary orders unless they were irrational, unreasonable, or shockingly against judicial conscience. The writ petition was disposed of with no order as to costs.