Excise & Customs : While deciding stay application, Appellate Authority should not only record on prima facie merit, but also, address on prima facie balance of convenience and also on plea of limitation, if raised
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[2014] 52 taxmann.com 257 (Calcutta)
HIGH COURT OF CALCUTTA
Bardinarayan Alloy & Steel Ltd.
v.
Arijit Chakrabarti,Commissioner of Central Excise, Haldia Commissionerate*
HARISH TANDON, J.
W.P. NO. 1170 OF 2013†
OCTOBER 31, 2014
Rule 3 of the Cenvat Credit Rules, 2004, read with sections 2(d) and 3 of the Central Excise Act, 1944 - CENVAT Credit - Removal of Inputs/Capital Goods - Period from 2005-06 to 2007-08 - Stay Order - Assessee was manufacturing MS ingots, etc. using 'MS scrap, CI scrap, etc.' - Assessee was clearing 'foreign particles' found in raw material as 'waste and scrap' at Rs. 2 per Kg. on payment of excise duty - Department argued that since removal of 'foreign particles' was shown in raw material account and not in Daily Stock Account, it amounted to removal of input as such and demanded reversal of credit - Assessee argued that waste arose in course of manufacturing and removal thereof cannot be regarded as 'removal of input as such' and further, demand was barred by limitation - Tribunal ordered pre-deposit of Rs. 50 lakhs out of duty demand of Rs. 238 lakhs - Assessee argued that pre-deposit should have been waived in view of time-bar and financial hardship - HELD : Since Tribunal had not recorded opinion on time-bar and financial hardship aspects, matter was remanded back to Tribunal [Paras 9 to 16] [Matter remanded]
Section 35F of the Central Excise Act, 1944, read with section 83 of the Finance Act, 1994 and section 129E of the Customs Act, 1962 - Appeals - Deposit, pending appeal, of duty/tax demanded or penalty levied - Section 35F empowers Appellate Authority to dispense with pre-deposit, but such discretion should be exercised on relevant material honestly, bonafide and objectively - Appellate Authority should not only record on prima facie merit, but also, address on prima facie balance of convenience and also on plea of limitation, if raised [Paras 9 to 13] [In favour of assessee]
■■■
[2014] 52 taxmann.com 257 (Calcutta)
HIGH COURT OF CALCUTTA
Bardinarayan Alloy & Steel Ltd.
v.
Arijit Chakrabarti,Commissioner of Central Excise, Haldia Commissionerate*
HARISH TANDON, J.
W.P. NO. 1170 OF 2013†
OCTOBER 31, 2014
Rule 3 of the Cenvat Credit Rules, 2004, read with sections 2(d) and 3 of the Central Excise Act, 1944 - CENVAT Credit - Removal of Inputs/Capital Goods - Period from 2005-06 to 2007-08 - Stay Order - Assessee was manufacturing MS ingots, etc. using 'MS scrap, CI scrap, etc.' - Assessee was clearing 'foreign particles' found in raw material as 'waste and scrap' at Rs. 2 per Kg. on payment of excise duty - Department argued that since removal of 'foreign particles' was shown in raw material account and not in Daily Stock Account, it amounted to removal of input as such and demanded reversal of credit - Assessee argued that waste arose in course of manufacturing and removal thereof cannot be regarded as 'removal of input as such' and further, demand was barred by limitation - Tribunal ordered pre-deposit of Rs. 50 lakhs out of duty demand of Rs. 238 lakhs - Assessee argued that pre-deposit should have been waived in view of time-bar and financial hardship - HELD : Since Tribunal had not recorded opinion on time-bar and financial hardship aspects, matter was remanded back to Tribunal [Paras 9 to 16] [Matter remanded]
Section 35F of the Central Excise Act, 1944, read with section 83 of the Finance Act, 1994 and section 129E of the Customs Act, 1962 - Appeals - Deposit, pending appeal, of duty/tax demanded or penalty levied - Section 35F empowers Appellate Authority to dispense with pre-deposit, but such discretion should be exercised on relevant material honestly, bonafide and objectively - Appellate Authority should not only record on prima facie merit, but also, address on prima facie balance of convenience and also on plea of limitation, if raised [Paras 9 to 13] [In favour of assessee]
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