By TIOL News Service

BANGALORE, JAN 16, 2013: THE Appellant filed an appeal against the appellate Commissioner's order rejecting the assessee's appeal filed against as adverse order of the Additional Commissioner. The rejection of the appeal by the Commissioner (Appeal) was on the sole ground of non-compliance pre-deposit ordered in terms of Section 35F of the Central Excise Act. In this appeal, the appellant seeks waiver and stay in respect of the adjudged dues which include duty of Rs.12,37,837/- demanded against CENVAT credit found to have been irregularly taken by the appellant on HR coils, HR plates, MS plates, channels, joists, angles, beams, etc. which were claimed to be capital goods.

After hearing from both sides, the Tribunal observed as –

“we have not found any strong prima facie case for the assessee against the direction issued by the lower appellate authority for pre-deposit. The aforesaid structural items were claimed to have been used for fabricating/manufacturing chimney, pollution control equipment, material handling equipment and other items of machinery. Apparently, this claim was not substantiated before the lower appellate authority, nor has the appellant been able to substantiate this claim before us. The submission of the learned Deputy Commissioner (AR) is that the aforesaid structural items were used to fabricate structural support to the machinery. If this submission is factually correct, the appellant cannot claim CENVAT credit on the said items. Thus, it becomes clear that any prima facie case would depend upon the above question of fact as to manner of use of the structural items. We have not found a clear case for the appellant on this issue. We are also not impressed with the plea of limitation raised by the learned counsel.

However, we are inclined to consider his submission that the appellant is running through a financial crisis on account of the ongoing Telangana agitation .”

Finally, The Tribunal ordered for pre-deposit of Rs. 2,50,000/- before the lower appellate authority. Accordingly, modified the direction of lower authority.

(See 2013-TIOL-98-CESTAT-BANG)