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2015 (9) TMI 568 - CESTAT MUMBAI

2015 (9) TMI 568 - CESTAT MUMBAI - 2015 (325) E.L.T. 145 (Tri. - Mumbai) - Utilization of Cenvat Credit for making deposit of 7.5%3 u/s 5F of the Central Excise Act, 1944 as pre-deposit before filling of appeal - Department claims that the disputed is related to cenvat credit itself and the action of the assessee is amount to reversal of the credit and not the payment of 7.5% amount - Held that:- the said amounts have not been reversed during the course of investigation but were paid by the appe .....

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inable. - However, in the interest of justice, we give two week's time to the appellant to deposit the same and report compliance on 10th August 2015. - Appeal E/85590/15-Mum - M/4064/2015-WZB/EB - Dated:- 15-7-2015 - P K Jain, Member (T) And S S Garg, Member (J),JJ. For the Appellant : Mr S S Gupta, CA For the Respondent : Mr Hitesh Shah, Commissioner (AR) ORDER Per: P K Jain: The case is posted before the Bench for maintainability of the appeal. As per Section 35F of the Central Excise Act, 19 .....

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ions of Section 35F. The learned counsel also submits that the Board vide circular No. 984/8/2014-CX dated 16.9.2014, has clarified that the payments during investigations will be taken into consideration for purpose of the said section. 3. Learned Commissioner (AR), on the other hand, submits that the various payments made are matter of dispute. The learned AR submits that it would be seen from the grounds of appeal that the appellant has made these submissions in para 8 at page 17 and 18, para .....

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er has in the impugned order confirmed the amount of ₹ 4,49,13,262/- and the appellant is required to deposit 7.5% of the same. The question whether the said amount can be adjusted against the said demand is a matter to be decided on merit by the Tribunal and cannot be examined for maintainability of the appeal. 4. We have considered the submissions. Section 35F of the Central Excise Act reads as under:- "SECTION 35F. Deposit of certain percentage of duty demanded or penalty imposed b .....

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ntral Excise]; (ii) against the decision or order referred to in clause (a) of sub-section (1) of section 35B, unless the appellant has deposited seven and a half per cent. of the duty, in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in dispute, in pursuance of the decision or order appealed against; (iii) against the decision or order referred to in clause (b) of sub-section (1) of section 35B, unless the appellant has deposited ten per cent. of the duty .....

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f this section "duty demanded" shall include,- (i) amount determined under section 11D; (ii) amount of erroneous Cenvat credit taken; (iii) amount payable under rule 6 of the Cenvat Credit Rules, 2001 or the Cenvat Credit Rules, 2002 or the Cenvat Credit Rules, 2004." It would be seen from the above section that the appellant is required to deposit 7.5% of the duty for filing the appeal. We have also gone through the circular No. 984/8/2014-CX dated 16.9.2014. The relevant para is .....

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