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TMI Blog2023 (9) TMI 1061X X X X Extracts X X X X X X X X Extracts X X X X ..... n represented by Sri Jugal Kishore Mahanta. The Union of India, The Commissioner of Central Excise and Service Tax, Dibrugarh and the Additional Commissioner of Central Excise and Service Tax are arrayed as respondent Nos. 1, 2 and 3 respectively. 3. Brief facts of this appeal are that during its usual course of business, the appellant/assessee filed Central Excise returns before the appropriate authority and claimed refund of duty paid in terms of Notification No. 20/2007-CE dated 25.04.2007, paid through PLA Account, after availing CENVAT Credit, to which the appellant (also referred to as the assessee) was entitled. The respondent No. 3, however issued a demand-cum- show cause notice dated 30.07.2013, with allegations that the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce no other issue was involved in the instant case, the case is liable to be dropped in accordance with the various judgments, cited by the appellant". The respondent No. 3 then, preferred an appeal against his own Order-in-Original (OIO, for short) dated 29.1.2014, before the Commissioner of Customs and Central Excise (Appeals) at Guwahati. The Commissioner (Appeals), Guwahati, vide an Order-In-Appeal No. 119/DIB/CE(A)/GHY/14 dated 24.11.2014, set aside the OIO dated 29.01.2014, and, thereafter, a Corrigendum was issued on 29.12.2014 by the Commissioner (Appeals), rectifying the order dated 29.01.2014. 5. It is contended by the appellant that appeal against the OIO was filed, but without hearing the appellant, the orders dated 24.11.2014 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. Thereupon, the appellant filed the appeal before the Customs, Excise and Service Tax Appellate Tribunal, Kolkata (CESTAT, for short) laying challenge to the impugned Order-In-Appeal, dated 14.09.2017, passed by the Commissioner (Appeals). The appeal was registered as Excise Appeal No. 75905/2018. When the matter came up for hearing on 02.01.2023, the respondents again came up with objections that the appellant had not made pre-deposits, mandatorily required in an appeal to the CESTAT, against the order of the first appellate authority. 7. The Revenue has agitated that against the order dated 14.09.2017, passed by the learned Commissioner (Appeals) the appellant filed a writ petition before the Gauhati High Court and vide order dated 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attained finality in law in absence of any subsequent order confirming the demand, as proposed to be levied under the demand-cum- show cause notice dated 30.07.2013. Therefore, no liability rests upon the appellant even after the impugned order dated 14.09.2017 was passed by the Commissioner (Appeals). The Revenue also did not prefer any appeal for confirmation of the demand after the OIO was set aside. 10. In the present case, there is dispute regarding duty and the only dispute was with respect to relevant documents based on which, CENVAT Credit can be utilized. It was argued that under Rule 3 of Section 35 F of the CEA, unless the appellant has deposited 10% of the duty, in case where duty and penalty are in dispute, no appeal shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been set aside by the Commissioner (Appeals). Therefore, the demand proposed under the show cause notice stands confirmed as on date. It is the mandatory requirement that the appellant has to make pre-deposit @ 10% of Rs. 35,34,992/- (Rupees Thirty Five Lacs Thirty Four Thousand Nine Hundred and Ninety-Two Only), if the appellant is desirous to challenge the demand made under the SCN. The respondent has raised objection to the submission of the appellant that Rule 9 of the CENVAT Credit Rules, 2004, is specific and univocal to the effect that an invoice issued by a manufacturer is sufficient to claim CENVAT Credit. It is contended that the very objective of issuance of invoice for clearance of input or capital goods would stand defeated, if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the corrigendum have been set aside. Though the OIO dated 29.01.2014 was set aside, no order was passed confirming the demand made vide show cause notice dated 30.07.2013. The submission of the respondent that as soon as the OIO dated 29.01.2014 was set aside by the first appellate authority, the show cause notice automatically fructifies into a demand, does not hold good. At the inception, the proceedings were initiated under a specific show cause notice, which was dropped by the Assessing Authority. The first Appellate Authority subsequently set aside the OIO, without confirming any demand. 14. Thus, it is manifest that the demand-cum-show cause notice dated 30.07.2013 has not attained finality in law in absence of any subsequent order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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