TMI Blog2012 (11) TMI 1002X X X X Extracts X X X X X X X X Extracts X X X X ..... on 35F of the Central Excise Act. At that time, no objection was raised by the respondent. Had it been the case of the respondent that the appellant had not made any valid pre-deposit and hence their appeal should not be considered on merits, this objection should have been raised before the Tribunal through the authorized representative of the department. But this was not done - pre-deposit could be made through debit in CENVAT account. This apart, the facts and circumstances narrated hereinbefore are enough to indicate that the show-cause notice in question was issued regardless of the fact that the assessee by debiting the amount in their CENVAT account was only implementing the order passed by this Tribunal under Section 35F of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst the decision, the Commissioner of Central Excise, Hyderabad filed Civil Appeal No. D16732/2010 but same was dismissed by the Hon ble Supreme Court by order dated 9-7-2010. 2. During the pendency of the appeals E/830 831/2007 ibid, the Additional Commissioner of Central Excise, Hyderabad-IV issued show-cause notice dated 4-3-2009 to the assessee proposing to recover from them an amount of Rs. 6,82,965/- which was alleged to have been irregularly availed in CENVAT account and utilized for pre-deposit purpose. The notice also sought to levy interest under Section 11AB of the Central Excise Act read with Rule 14 of the CENVAT Credit Rules, 2004. It also proposed penalty under Rule 15(1) of the CCR, 2004 for the alleged contravention of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment to issue the show-cause notice in question as it was barred by judicial discipline. For these reasons, it is argued that the subsequent proceedings of the department are also liable to be set aside. 4. The learned Additional Commissioner (AR) points out that the appellant was not entitled to avail or utilize CENVAT credit inasmuch as they were always manufacturing and clearing exempted final product only. Where the law barred the benefit of CENVAT credit, it was not open to the appellant to utilize CENVAT credit for the purpose of pre-deposit either. According to the learned Additional Commissioner (AR), the fact that no objection was raised by the department before this Tribunal or the Apex Court is not fatal to the impugned procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the noting of compliance with that order was also a judicial act amenable to appeal by the aggrieved party. In the present case, indisputably, no appeal was filed by the department against the acceptance of debit in CENVAT account as valid pre-deposit under Section 35F of the Central Excise Act. On the other hand, during the pendency of the appeals E/830 and 831/2007, the department chose to issue a show-cause notice to the assessee for recovery of the CENVAT credit amount and interest thereon and for imposition of penalty. This was done on the premise that the assessee was not entitled to utilize CENVAT credit for pre-deposit purpose. This very premise is ill-conceived inasmuch as there are umpteen number of decisions of this Tribunal to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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