TMI Blog2014 (7) TMI 925X X X X Extracts X X X X X X X X Extracts X X X X ..... facie view is that the appellant has not made out any case for complete waiver of pre-deposit of the dues adjudged, that prior thereto, observations have been made and with regard to the applicability and contravention of the provisions of sub-rule (1) and sub-rule (3) of Rule 6 of the CENVAT Credit Rules, 2004. Tribunal has failed to exercise its jurisdiction in accordance with law. The impugned order is quashed and set aside. The appeal preferred by the assessee is restored to the file of the Tribunal for being heard afresh in accordance with law. Even if, detailed submissions are made by both the sides before the Tribunal, we would expect the Tribunal not to render a conclusive finding and opinion on the merits of the matter namel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder, the matter was carried in Appeal by the assessee before the Tribunal. 4] After hearing Mr. Sridharan, learned Senior Counsel, appearing in support of this appeal and Mr. Jetley, learned counsel, appearing for the revenue, we are of the opinion that the Tribunal should have restricted its prima facie conclusion to the point and particularly whether the condition of deposit of ₹ 24,00,000/- imposed by the Commissioner is reasonable and whether the Commissioner has exercised his discretion arbitrarily and capriciously. If the discretion has been exercised reasonably and properly, then, there was no occasion for the Tribunal to exercise its further appellate jurisdiction. 5] However, the Tribunal proceeded as if the Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he word 'taken or utilised' appearing in Rule 14 of the CENVAT Credit Rules, 2004 and held that there was no reason to distinguish between the two terms and interest liability will accrue from the date of wrong taking of the credit, even if it was not utilised. In the present case, the appellant was prohibited from utilizing the credit in excess of 20% under Rule 6(3)(c) and the appellant was prohibited from taking any credit under Rule 6(1) in respect of exempted services. Therefore, we are, prima facie, of the view that the appellant has not made out any case for complete waiver of pre-deposit of the dues adjudged. Inasmuch as the appellant has already paid an amount of ₹ 10,79,796/-towards interest on the wrong utilization ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accordance with law. The impugned order is quashed and set aside. The appeal preferred by the assessee is restored to the file of the Tribunal for being heard afresh in accordance with law. Even if, detailed submissions are made by both the sides before the Tribunal, we would expect the Tribunal not to render a conclusive finding and opinion on the merits of the matter namely the pending appeal before the Commissioner. The Tribunal may refer to the arguments and some of the judgments which may be brought to its notice but we would expect it to be cautious and careful in not expressing any final opinion thereon. The Tribunal should confine its exercise to consideration of the application made before the Commissioner and whether there is any ..... X X X X Extracts X X X X X X X X Extracts X X X X
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