TaxTMI 
TaxTMI 
TaxTMI 
2016 (11) TMI 1094
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....ued by the Registry as to why their appeal should not be dismissed as they had not pre-deposited 7.5% of the confirmed duty liability. The Tribunal vide Order No. M/4660/2015/EB, dated 23-9-2015 was pleased to grant four weeks time to deposit 7.5% of disputed amount failing which appeal will be liable to be dismissed. The applicant vide its letter dated 16-10-20015 complied with direction of the Tribunal. The applicant has now made the present application under Rule 41 of CESTAT (Procedure) Rules, 1982 seeking direction of the Tribunal to permit re-credit of the duty paid to the Cenvat credit account. 2. Learned Counsel for the applicant argued that the applicant had discharged their entire duty liability through Cenvat credit and 7.5% that they have deposited under Section 35F results in 107.5% of duty. The applicant relied on the Circular dated 28-8-2014 issued by the Registrar, CESTAT, wherein it has been clarified as follows : - "As there is confusion of adjustment of CENVAT Credit against mandatory penalty, clarification have been sought from competent authority. In absence of any clarificatory Circular on the issue, all the DRs/ARs/TOs are directed that the appeals rec....
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....redit of the amount debited in Cenvat Credit amount. Moreover, from the language of Rule 8(3A), it is clear that it is a non obstante provision which operates notwithstanding anything contained in sub-rule (1) & sub-rule (4) of Rule 3 of the Cenvat Credit Rules, 2004 and hence provisions of this sub-rule will have overriding effect over the provisions of the Cenvat Credit Rules, 2004. The intention of this sub-rule (3A) of Rule 8 is to punish an assessee defaulting in discharge of monthly duty liability beyond a period of 30 days from the due date by denying the utilization of Cenvat Credit and making him pay the duty consignment-wise without utilizing the Cenvat Credit. There appears to be justification for such a penal provision as in most of such cases, while a defaulting assessee has not paid duty on the goods cleared during a particular month, on the basis of the invoices issued by him, his customers would have taken Cenvat Credit resulting in double loss to the Government." A perusal of the aforesaid decision of Hon'ble High Court would show that in case of decision of Hon'ble High Court of Madras, there was no mention about re-credit of the amount paid under Section 35F. In....
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....ppeal. To put it in other words, the interim relief is granted to preserve in status quo the rights of the parties (See Kihoto Hollohan). In Madan Gopal's case, it has been pointed out that the interim orders are passed in aid of the main relief. Therefore, it is quite inherent in the Appellate power and more so in the case of the CEGAT to pass such interim orders as are necessary for the purpose of ensuring that the main relief sought in the appeal is available to the party at the end of the proceeding. The fact that Section 129E only provides for relieving the appellant from the undue hardship that would be caused to him in depositing the duty and interest as demanded or penalty as levied, does not in any way take away the inherent power of the Appellate Tribunal to pass such interim orders as are necessary. This is only restated in Rule 41 of the Customs, Excise and Gold (Control) Appellate Tribunal (Procedure) Rules, 1982. Therefore, the contention of the learned counsel for the respondent/writ petitioner that there is no power vested in the Customs, Excise and Gold (Control) Appellate Tribunal to pass an interim order directing the release of the goods, therefore, it has becom....
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....he same are adjusted against confirmed duties. So far as refund of duty is concerned, the same is governed by Section 11B and the provisions for the interest and refund are significantly different. The Circular dated 16-9-2014 in Para 5 prescribes the procedure for refund of pre-deposit as follows : - "5. Refund of pre-deposit : 5.1 Where the appeal is decided in favour of the party/assessee, he shall be entitled to refund of the amount deposited along with the interest at the prescribed rate from the date of making the deposit to the date of refund in terms of Section 35FF of the Central Excise Act, 1944 or Section 129EE of the Customs Act, 1962. 5.2 Pre-deposit for filing appeal is not payment of duty. Hence, refund of pre-deposit need not be subjected to the process of refund of duty under Section 11B of the Central Excise Act, 1944 or Section 27 of the Customs Act, 1962. Therefore, in all cases where the appellate authority has decided the matter in favour of the appellant, refund with interest should be paid to the appellant within 15 days of the receipt of the letter of the appellant seeking refund, irrespective of whether order of the appellate authority is....