TMI Blog2014 (9) TMI 190X X X X Extracts X X X X X X X X Extracts X X X X ..... imilar orders. We do not find any error in such exercise of discretion by the Tribunal. At this juncture, the learned counsel for the appellant pleaded that as a last chance one month's time may be granted for payment of the pre-deposit amount, as directed by the Tribunal. - time allowed - appeal restored before tribunal. - C.M.A.No.1853, 1857, 2224 and 2225 of 2014 and M.P.No.1 of 2014 (4 Petitions) - - - Dated:- 14-8-2014 - R. Sudhakar And G. M. Akbar Ali,JJ. For the Appellant : Mr. S. M. Deenadayalan For the Respondents : Mr. P. Mahadevan Standing Counsel for 2nd respondent JUDGMENT (Delivered by R. Sudhakar,J.) C.M.A.Nos.1853 and 1857 of 2014 are filed challenging the Misc. Order Nos.40788 and 40787 of 2014, dated 13.5.2014 passed by the Customs, Excise and Service Tax Appellate Tribunal, Chennai (for brevity, the Tribunal ). 2. C.M.A.Nos.2224 and 2225 of 2014 are filed challenging the Final Order Nos.40383 and 40384 of 2014, dated 2.7.2014 passed by the Tribunal. 3.1. The brief facts of the case are as under: The appellant is engaged in the manufacture of Sheet Metal Pressed Automobile Components falling under Chapter 87 of CETA, 1985. The as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and penalty was sought to be imposed under Rule 25 of the Central Excise Rules, 2002 read with Rule 15(1) of the Cenvat Credit Rules, 2004. The notice was states as under: as to why: (i) to (iii) xxx (iv) the assessee, having defaulted in payment of duty beyond thirty days from the due date, should not be required to pay excise duty for each consignment at the time of removal, without utilizing the cenvat credit, till the date the assessee pays the outstanding amount, including interest thereon, as per Rule 8(3A) of the Central Excise Rules, 2002. 3.7. Likewise, another show cause notice was issued on 3.1.2012 with regard to the clearances of excisable goods for the period from January, 2011 to October, 2011. 3.8. As no reply was received from the assessee for the above two show cause notices, the matter was taken up for adjudication and the original authority passed Order-in-Original Nos.8 and 9 of 2012-2013, dated 30.8.2012 in the following manner: (i) I hereby demand payment of the amount of duty of ₹ 42,84,883/- (Rs. forty two lakhs eighty four thousand eight hundred and eighty three only) from the assessee for the clearance of excisable goods effected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sted to give a month's time and requested to give PH for the main appeal after one month. Taking note of the scope of Section 35F of the Central Excise Act and the stand of the assessee, the Commissioner (Appeals) passed the following order in the stay petitions: 8. In view of the foregoing facts and circumstances and keeping the interest of Revenue balance of convenience, I order to pay a pre-deposit of 50% of the duty confirmed, (Rs.42,84,883/- for the period May 2010 to December 2010 and ₹ 48,46,517/- for the period January 2011 to October 2011), in Cash/PLA in the impugned Order No.08 09/2013 dt.30.08.2012 by 21.03.2013 and waive the pre-deposit of interest and penalty imposed in the impugned order, under Section 35F of CEA. 9. If the Appellants fail to pay the said pre-deposit before the afore mentioned due date, the appeal is liable to be dismissed, for non-compliance to the condition of stay granted in terms of Section 35F of the Central Excise Act 1944, without any further notice. 3.10. Aggrieved against the above order, the assessee filed W.P.Nos.6752 and 6753 of 2013, which came to be disposed of on 20.3.2013 upholding the order of Commissioner ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grieved by the said order dated 13.5.2014, C.M.A.Nos.1853 and 1857 of 2014 are filed before this Court raising the following substantial questions of law: (1) Whether on the facts and in the circumstances of the case, the Tribunal was correct in law in not considering flouting of Rule 8(3A) of the Central Excise Rules, by the lower adjudicating authority and the lower appellate authority, inasmuch as demanding of duty beyond 21.8.2010, the date on which the defaulted duty was paid along with interest by the appellant? (2) Whether the Tribunal is justified in directing to pay pre-deposit of ₹ 45,65,700/- (Rupees forty five lakhs sixty five thousand and seven hundred only), since the petitioner/appellant has already paid the defaulted duty of ₹ 70,046/- along with interest amounting to ₹ 3,467/- on 21.8.2010 and as per Rule 8(3A) of the Central Excise Rules, 2002, the duty that can be demanded by cash by the respondents during the default period works out to ₹ 19,50,000/- (Rupees Nineten Lakhs and Fifty Thousand only)? (3) Whether the Tribunal is justified in directing to pay pre-deposit of ₹ 45,65,700/- (Rupees forty five lakhs sixty five thous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 65,700/- (Rupees forty five lakhs sixty five thousand and seven hundred only) without going into the facts and appreciating the merits of the case and based only on the Final Order-in-Appeal No.195 196/2013 (M-IV), dated 8.5.2013 passed by the Commissioner of Central Excise, Appeals and on the order of the High Court dated 20.3.2013 in W.P.No.6752 and 6753 of 2013 dealing with pre-deposit alone? (4) Whether the Tribunal is justified in dismissing the appeal for non-compliance of stay order of directing the appellant to pay pre-deposit of ₹ 45,65,700/- ((Rupees forty five lakhs sixty five thousand and seven hundred only) in the present case, when the Tribunal itself, for the same appellant, in an earlier appeal, where the facts are similar to the facts of the case on hand, vide Misc.Order No.42363/2013, dated 25.9.2013 has directed to pay only interest without any pre-deposit? (5) Whether the Tribunal is justified in passing different orders for same set of facts involving same issue, for the same appellant both covered by Rule 8(3A) of the Central Excise Rules, 2002? 4. In view of the filing of these appeals, the writ appeals in W.A.Nos.935 and 936 of 2013 were clo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty demanded and the interest due thereon and imposed penalty of an amount equivalent to the duty involved under Rule 25 of Central Excise Rules, 2002 (CER). 8. In this regard, I deem it relevant to reproduce the provisions of Rule 8(3A), introduced vide Notification No.13/2006-CE(NT), dt. 1.5.2006. If the assessee defaults in payment of duty beyond 30 days from the due date, as prescribed in sub-rule (1), then notwithstanding anything contained in said sub-rule (1) and sub-rule (4) of Rule 3 of CENVAT Credit Rules, 2004, the assessee shall, pay excise duty for each consignment at the time of removal, without utilizing the CENVAT credit till the date the assessee pays outstanding amount including interest thereon; and in the event of any failure, it shall be deemed that such goods have been cleared without payment of duty and the consequences and penalties as provided in these rules shall follow. 8(i) From the foregoing provisions of Rule 8(3A) of CCR, it is clear that the duty liability discharged by the Appellants through CENVAT cannot be treated as due discharge of duty liability at all; and it is deemed that the subject goods removed during the disputed period were clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king note of the offer made by the assessee, interim order was passed by the Commissioner (Appeals) for the subsequent periods and the Tribunal also passed similar orders. We do not find any error in such exercise of discretion by the Tribunal. 12. At this juncture, the learned counsel for the appellant pleaded that as a last chance one month's time may be granted for payment of the pre-deposit amount, as directed by the Tribunal. He further pleaded that since the Commissioner (Appeals) dismissed the appeals without going into the merits of the case, the matter may be remitted to the Commissioner (Appeals) for fresh consideration, instead of remanding it to the Tribunal. The appellant has also filed affidavits dated 14.8.2014 to the said effect and the same are taken on file. 13. Considering the said plea made by the learned counsel for the appellant and the affidavits dated 14.8.2014 filed by the appellant, we permit the appellant to make pre-deposit of amount in terms of the order of the Tribunal within a period of one month from the date of receipt of a copy of this order. The Commissioner (Appeals) has not gone into the merits of the matter and the entire issue got b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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