- (1.) THE present appeal has been filed against the order dated 25.10.10/29.10.10 passed by the Customs and Service Tax Appellate Tribunal, Principal Bench, New Delhi, whereby the applications for grant of waiver for pre -deposit of CENVAT credit demand and penalty has been partly allowed and the Tribunal has directed the Appellants to deposit a sum of Rs. 12,00,00,000/ - within a period of eight weeks from the date of the order.
(2.) WE have heard Shri A.P. Mathur, learned Counsel appearing for the Appellants and Shri S.P. Kesarwani, learned Senior Standing Counsel appearing for the Respondents and have perused the impugned judgment and order dated 25.10.10/29.10.10 passed by the learned Single Judge giving rise to the present appeal, the grounds taken in the memo of appeal and the documents filed along with it. Shri A.P. Mathur, learned Counsel for the Appellants submitted that for grant of waiver of deposit of the duty and penalty, the Tribunal is required to consider only as to whether the interest of the revenue is safeguarded or not. According to him, interest of the revenue is amply safeguarded for the simple reason that the amount of set off of canvat credit has been adjusted by the Appellant towards payment of duty on the finished goods. Even if it is assumed that finished goods has not been manufactured it shall not cause any loss to the revenue and, therefore, the Tribunal had committed error in partly allowing the waiver application and directing to deposit a sum of Rs. 12 crores out of the demand of Rs. 12,12,66,764/ - and of like amount of penalty.
(3.) THE submission made by Shri A.P. Mathur is wholly misconceived. For considering the case of grant of stay or waiver of realization of the demand/penalty, the authority has to consider the existence of prima facie case, balance of convenience and suffering of irreparable loss in case stay/waiver is not granted. The plea that the interest of the Revenue is amply safeguarded may be an additional factor to be considered while granting stay/waiver. The Tribunal has found that the raw -materials purchased by the Appellant were not utilized in the manufacture of finished goods and the Appellant had fraudulently adjusted the amount for paying Central Excise duty on the finished goods, which the Appellant could not have done so. The Tribunal on the basis of material and evidence on record and on the basis of submissions made by the parties, have recorded categorical findings that the Appellants have failed to make -out prima facie case in its favour for waiver of the amount of duty and penalty.;