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2016 (12) TMI 1163 - CESTAT KOLKATAMaintainability of appeal - mandatory deposit of duty required to be made under Section 35F (i) of the Central Excise Act, 1944 has been paid from the CENVAT Account maintained by the appellants - whether mandatory deposit of seven and half per cent as per Section 35F (i) of the Central Excise Act 1944, is required to be paid in cash or the same can be paid from CENVAT Credit Account maintained by the appellants? - Held that: - it is not specifically mentioned in section 35F, that amount has to be deposited only by way of cash payment. Rule 3(4) of CENVAT Credit Rules, 2004 says that In a case of dispute about admissibility of CENVAT Credit, ultimate action against an assessee, if found to be inadmissible to CENVAT Credit, will be to reverse CENVAT Credit taken. In such a case there may not be any need to make pre deposit in cash. Similarly, in the case of demand of duty, if CENVAT Credit is permissible for payment of tax, the same can always be debited from CENVAT Account of an assesse. As per procedure followed by CESTAT Registry at Kolkata, payments made from CENVAT Credit Account are considered as due payments for considering as deposit under Section 35F (ii) and (iii) of Central Excise Act, 1944. Thus, the view taken by the First Appellate Authority, that deposit under Section 35F (i) cannot be made from CENVAT Credit Account, is not the correct appreciation of law so long as the CENVAT Credit is permissible for utilisation as per Rule 3(4) of the CENVAT Credit Rules, 2004 - The appellants are allowed by way of remand to the First Appellate Authority with directions to decide the appeals on merits - Appeal allowed by way of remand.
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