TaxTMI 
TaxTMI 
2006 (8) TMI 596
X X X X Extracts X X X X
X X X X Extracts X X X X
....d Levy Scheme under Section 3A of the Central Excise Act was withdrawn. Thereafter, with effect from 1^st April, 2000 the company started paying duty under Section 3 of the Central Excise Act, 1944 at the ad valorem rate of duty specified in the Central Excise Tariff Act, 1985 and availing CENVAT credit. 5. By a notification No. 29/2000-CE(NT) dated 31^st March, 2000, the Central Government amended the Central Excise Rules, 1944 by insertion of Rules 57AG & 57AB. 6. According to the petitioners, the petitioner company became entitled to avail CENVAT credit as deemed credit on the stocks of Ingots and Billets of non-alloy steel, falling under sub-heading No. 7207.90, lying on 31^st March, 2000, on which duty had been paid under Section 3A of the said Act. 7. According to the petitioners, the petitioner company inter alia availed of deemed credit amounting to Rs. 3,10,188/- on ingots manufactured in their factory lying in stock as on 31^st March, 2000 and captively consumed for manufacture of the finished product, that is, hot roled products of non-alloy steel falling under Chapter 72 of the Schedule of the Central Excise Tariff Act. 8. A show-cause notice dated 13^th Feb....
X X X X Extracts X X X X
X X X X Extracts X X X X
....or order relating to any duty demanded or penalty levied, the appellant would be required to deposit with the adjudicating authority the duty demanded or the penalty levied as the case might be. 14. The appellant authority, be it the Commissioner (Appeals) or the Appellate Tribunal, might dispense with such deposit, if it is of the opinion that deposit of the duty demanded or penalty levied would cause undue hardship to the appellant. 15. The petitioner made an application before the CESTAT for stay of the impugned order dated 29th August, 2005 pending disposal of the appeal and also for waiver of pre-deposit of the disputed duty. 16. On behalf of the petitioner company, it was argued that the Appellate Authority had, in passing the order under appeal travelled beyond the scope of the show-cause notice as well as the order in original. 17. The allegations in the show cause notice pertaining to deemed credit of Rs. 3,10,188/- against 209.636 M.T. of Mild Steel Ingots procured and consumed captively are extracted hereinbelow: Further, the said assessee have availed Deemed Credit amounting to Rs. 3,10,188.48 against a quantity of 209.636 MT of M.S. Ingots procured....
X X X X Extracts X X X X
X X X X Extracts X X X X
....garding which para 5 of the said Notification stipulates that "the provisions of this notification shall not apply to inputs where the manufacturer of the said inputs has not declared the invoice price of the said inputs correctly in the documents issued at the time of their clearance from his factory". In this case the appellant declared the invoice price for captive consumption of M.S. Ingot @ Rs. 10,500/- per M.T. whereas in other cases I find from their submitted RT-12 return for the same month of April 2000 that they cleared 76975 M.T. of the same goods @ Rs. 8,290/- per M.T. Therefore, it is clear that though M.S. Ingot (SH No. 7206.90) is eligible input in this case for the purpose of deemed credit but the appellant did not declare the invoice price of the said inputs correctly in the documents and, therefore, I am of the view that the deemed credit to the tune of Rs. 3,10,188/- is not admissible to the appellant. 20. It was argued that the Commissioner of Central Excise (Appeal 1) had apparently travelled beyond the scope of the show cause notice in arriving at his finding of the petitioner not declaring the invoice price of the inputs correctly, which was not a charge a....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... edged case, pre-deposit would have to be waived altogether. If the appellant has an arguable case, pre-deposit might be waived on such conditions as would protect the interests of revenue. 28. In fact, the CESTAT was conscious of its duty to consider the prima facie case and accordingly recorded a finding of the appellant not being able to make out a prima facie case. The finding is unsupported by any reasons whatsoever. The CESTAT neither recorded nor dealt with the submissions of the parties which the CESTAT was obliged to do. 29. Pre-deposit of duty and/or penalty pending hearing of an appeal is a statutory requirement under Section 35F of the Central Excise Act, 1944. Pre-deposit might only be dispensed with upon satisfaction that pre-deposit would cause hardship and not otherwise. 30. An order disposing of an application for dispensation of the requirement of pre-deposit of the disputed duty and/or penalty has to be reasoned. Even though detailed reasons might not he necessary, some reasons are obligatory. The order should disclose the process of reasoning that led to the decision. 31. In the instant case, as observed above, the CESTAT has neither recorded the sub....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Court to formulate the question and to hear the appeal only on the question so formulated. 39. The impugned order is really incidental to the hearing of the appeal and, in any case, does not involve any substantial question of law. 40. In the case of Shaw Wallace & Co. Ltd. v. Income Tax Appellate Tribunal and Ors. reported in 240 ITR 579 (Cal) cited by Ms. Bose, A.N. Ray, J. held as follows: Regarding the point of Section 260A, in my opinion, an appeal would not be permissible from any and every order passed by the Tribunal under this section. If, say, an order of adjournment is passed, the assessee could not come in appeal to the High Court under Section 260A. There are many instances of provisions allowing appeals where words such as ever order, any order, all orders, etc. have been interpreted to mean and include only those orders which are substantially final in some sense or the other, and which finally dispose of or affect the parties' rights in regard to some important point in controversy. In my opinion, the words every order of the Tribunal has to be passed in appeal. Here the impugned order of the Tribunal was not passed in appeal but in a miscelaneous....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e interests of revenue. 44. Whether pre-deposit of the disputed duty or penalty would cause hardship, and if so, to what extent, are essentially matters of facts which are to be taken into account considering various factors including in particular the financial capacity of the appellant and the prima facie case in appeal. 45. An order directing the pre-deposit or an order waiving pre-deposit may not involve any question of law, far less a substantial question of law and hence may not be appealable. In any case, such an order cannot be said to be an order in the appeal but is an order incidental to the hearing of the appeal. An order directing deposit of disputed duty or penalty either in full or in part is not ordinarily appealable. It cannot, therefore, be said that the petitioner has an adequate efficacious alternative remedy. 46. Article 226 of the Constitution of India does not impose any limitations on the power of the High Court to issue writs, even where there is an alternative remedy. Where there is an efficacious alternative remedy this Court refrains from exercising its extraordinary jurisdiction. This Court would not reject an application under Article 226 of t....