VISHWANATH PACKAGING Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) THIS appeal arises from a decision of the Customs, Excise & Service Tax Appellate Tribunal dated 2 April 2014 on an application for modification of an earlier order dated 6 May 2011 which has been passed on an application for waiver of pre -deposit. By the impugned order, the Tribunal has dismissed the application for modification. During the period in dispute, the allegation is that the appellant failed to deposit the monthly duty liability in terms of rule 8(1) of the Central Excise Rules. Hence, under rule 8(3A), the appellant was required to pay the duty consignment -wise and only through the PLA since the period of default was beyond 30 days from the due date. However, the appellant discharged the duty liability by availing of Cenvat credit which was not permissible. The Additional Commissioner by an order dated 29 January 2010 confirmed the duty demand of Rs. 7,90,954/ - together with interest and imposed a penalty in the like amount besides a personal penalty of Rs. 20,000/ - on the partner. In appeal, the Commissioner (Appeals) upheld the order of adjudication on 29 June 2010 save and except for the penalty which was reduced to Rs. 2,00,000/ -.

(2.) IN appeal before the CESTAT an order was passed on 6 May 2011 on an application for waiver of pre -deposit directing the appellant to deposit an amount of Rs. 5,26,305/ - within a period of three months from the date of the order. However, the Tribunal observed that once this amount was paid through the PLA, the amount which had been paid through Cenvat credit would be re -credited to that account. The Tribunal held that under rule 8(3A), the appellant having failed to discharge the monthly liability within the stipulated period of 30 days as prescribed by rule 8(1), it had forfeited the facility for the payment of duty through Cenvat credit account. Hence, under rule 8(3A), the appellant was required to pay the duty consignment -wise and only through the PLA and without utilising the Cenvat credit. However, the quantum of deposit was reduced to Rs. 5,26,305/ - on the ground that the appellant had already deposited an amount of Rs. 2,64,249/ - through the PLA. This order was passed on 6 May 2011.

(3.) DURING the course of the hearing before the Tribunal, as the submissions would indicate, the only submission was that in another order passed by the Tribunal on 12 June 2013 on a miscellaneous application for modification, certain relief had been granted. This was duly considered by the Tribunal in paragraph 3 of its impugned order. The Tribunal noted that in the earlier order, the appellant had been directed to deposit an amount of Rs. 5 lakhs as against which it had deposited an amount of Rs. 6,25,194/ - together with interest and it was in these circumstances that the Tribunal observed that if this fact was drawn to its attention, it would not have directed a pre -deposit of a further amount of Rs. 5 lakhs. On the other hand, in the present case, there was no deposit of any amount towards the pre -deposit. The Tribunal has relied on a judgment of the Madras High Court in Unirols Airtex v. Asstt. CCE : [2013] 38 taxmann.com 315 : 42 GST 117 and held that a period of two years had elapsed but no deposit had been effected.