2003 (10) TMI 194 - AT - Central Excise

Tribunal grants waiver for pre-deposit, stays recovery in favor of assessee under Central Excise Act

The Tribunal ruled in favor of the assessee, granting a waiver for pre-deposit and staying the recovery until the appeal's disposal. The Tribunal ... Stay/Dispensation of pre-deposit - Duty payment - Scope of - Cenvat/Modvat Issues:1. Whether the Department can claim 8% on the sale value of cleared Sulphuric Acid and Phosphoric Acid.Analysis:The issue in this case revolves around the claim by the Department for an amount equal to 8% on the sale value of Sulphuric Acid and Phosphoric Acid cleared by the assessee during specific periods. The contention raised is that the demand for this amount does not arise due to the non-availment of various inputs used for manufacturing the products and the credit associated with them. Reference is made to a previous Tribunal ruling emphasizing that the sum payable under Rule 57CC of the Central Excise Rules does not constitute duty, thus challenging the applicability of Section 35F of the Central Excise Act, 1944 regarding pre-deposit requirements for hearing appeals.The arguments presented by the ld. Counsel focus on the non-availment of inputs and credits, questioning the necessity of the demanded amount. On the other hand, the Revenue representatives argue against granting a waiver of pre-deposit, emphasizing the absence of financial hardship claims by the appellants. The Commissioner's detailed findings in the impugned order are highlighted in support of their stance.Upon careful consideration, the Tribunal notes that a co-ordinate Bench has previously ruled that the amount under Rule 57CC does not require pre-deposit under Section 35F of the Central Excise Act, 1944, as it does not qualify as duty. Consequently, the Tribunal grants a waiver for pre-deposit and stays the recovery until the appeal's disposal. Acknowledging the substantial amounts involved, the request for an out-of-turn hearing is accepted, scheduling the appeal for final hearing on a specified date. Additionally, the Registry is instructed to list the Department's appeal alongside the pending appeals for consolidated consideration.