Mr. Akil Kureshi, J. - (1.) The petitioners have challenged communications dated 21.08.2014 and 28.11.2014 commonly produced at Annexure A issued by the Commissioner (Appeals), Central ExciseCustoms, Surat-II, under which, he called upon the petitioners to pay the amount of pre-deposit for maintaining the appeals in cash instead of through availing cenvat credit in the account.
(2.) The petitioners had certain disputes regarding availing cenvat credit on the sales promotion charges under the category of business auxiliary service with the department. The department therefore issued show-cause notices to recover the cenvat credit so availed which according to department, was erroneous. Various notices along the same line were issued by the department. The petitioners opposed the proposal contained in the show-cause notice. The Adjudicating authority passed an order dated 25.06.2014 disallowing the cenvat credit to be recovered with interest. He also imposed the penalty. Against such order, the petitioners preferred appeal before the Appellate Commissioner on 08.08.2014. In terms of section 35F of the Central Excise Act, the petitioners needed to deposit certain percentage of the duty and penalty by way of pre-deposit to maintain the appeal. The petitioners deposited the specified sum, however, by debiting the cenvat credit account to that extent. According to the petitioners, this mode of deposit was even otherwise accepted by the department. The petitioners also relied on a circular issued by CESTAT dated 28.08.2014 clarifying that the appeals may be entertained, if mandatory, pre-deposit is made from cenvat account and evidence is produced.
(3.) Respondent No. 3-the Commissioner appeals however, did not accept the petitioners' stand in this regard and, by the impugned communication, insisted that the mode of making pre-deposit was not proper; and that he petitioner must deposit the amount in question in cash. The petitioners made further detailed correspondence with the said authority and also represented before the department pointing out inter alia that the departmental authorities have been accepting such mode of payment, that the petitioners have thus fulfilled the requirement through legitimate means and that therefore, the appeals be entertained on merits. However, respondent No.3 was unmoved. Thereupon, the petitioners have approached this Court.;