TaxTMI 
TaxTMI 
2017 (6) TMI 149
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....ed by the appellant amounting to Rs. 3,39,84,531/- and ordered for its recovery under Rule 14 of the CENVAT Credit Rules 2004 read with Section 11A of the Central Excise Act, 1944. The appellant also moved miscellaneous applications praying for stay in all the appeals without insisting on mandatory pre-deposit of 7.5% of the amount of duty or penalty as provided under the amended provisions of Section 35F w.e.f. 06/08/2014. Various arguments were advanced in support of these miscellaneous applications and various case laws also submitted and argued. After due consideration and hearing, the Tribunal passed Interim order No. 70-76/2016 dt. 30/08/2016 in which the appellant was directed to comply with the requirements of Section 35F and intima....
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....p; In compliance to the direction of the Hon'ble High Court, the matter was heard on 09/02/2017. On behalf of the appellant Shri Joseph Kodianthara, Sr. Advocate was heard and the Revenue was represented by Shri Mohammad Yousaf, Addl. Commissioner(AR). 3. The learned counsel for the appellant submitted that the common issue in these appeals which arise out of the same impugned order is alleged irregular availment of CENVAT credit. The appellant is engaged in the manufacture of automobile tyres classifiable under Chapter 40 of the Central Excise Tariff. Tyres are supplied by the appellant both as Original Equipment (OEM) to automobile manufacturers as well as for the Re....
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....ought to be reversed as a mandatory pre-deposit under Section 35F of the Central Excise Act, 1944. The appellant's plea against this order, made before the Hon'ble High Court of Kerala as well as reiterated before the Tribunal in the present hearing is as follows:- i. The impugned order seeks to reverse CENVAT credit availed on the duty paid on flaps and tubes by taking the view that it is inadmissible under the category of inputs as well as accessories. However at the time of clearance of the tyres, value of the tubes and flaps are also included in the said tyres and Central Excise duty has been paid on the total value including that of flaps and tubes. In this way, even if the CENVAT credit is alleged to have ....
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....l Excise Act, 1944 or Section 129E of the Customs Act, 1962, shall not be treated as deposit under the said sections. 3.2 Since the amount paid during investigation/audit takes the colour of deposit under Section 35F of the Central Excise Act, 1944 or Section 129E of the Customs Act, 1962 only when the appeal is filed, the date of filing of appeal shall be deemed to be the date of deposit made in terms of the said sections. 3.3 In case of any short-payment or non-payment of the amount stipulated under Section 35F of the Central Excise Act, 1944 or Section 129E of the Customs Act, 1962, the appeal filed by the appellant is liable for rejection. The circular states that payments made during the course of investigati....