KRISHNA MURARI, J. - (1.) THIS appeal under Section 35 (G) of the Central Excise Act, 1944 (hereinafter referred to as the Act) is directed against the order dated 1.5.2009 passed by Customs, Excise and Service Tax Appellate Tribunal Principal Bench, New Delhi, disposing of the appellant's application for stay/waiver of pre-deposit of the service tax demand and penalty with a direction to deposit a sum of Rs.1 crore within 8 weeks and report compliance on 25th of June, 2009.
(2.) FACTS giving rise to the dispute are as under: Appellant was issued a notice dated 10.10.2007 to show cause as to why, (i) Education Cess amounting to Rs. 3,58,7171- short/not paid by them and interest accrued thereon, should not be demanded and recovered from them respectively under Section 11A and 11AB of the Central Excise Act, 1944 and the amount of Rs. 2,54,805/- already paid should not be appropriated and adjusted against the total amount so payable; (ii) Penalty under Rule 25 of Central Excise Rules, 2002 read with Section 11AC of the Central Excise Act, 1944 should not be imposed upon them; (iii) CENVAT Credit amounting to Rs. 6,21,39,585/-wrongly availed and utilised should not be demanded and recovered from them under Rule 14 of CENVAT Credit Rules, 2004 read with Section 11A of Central Excise Act, 1944; (iv) Interest should not be recovered from them under Rule 14 of CENVAT Credit Rules, 2004 on the amount of credit wrongly availed and utilised read with Section 11 AC of the Central Excise Act, 1944; and (v) Penalty under Rule 15 of CENVAT Credit Rules, 2004 read with Section 11 AC of the Central Excise Act, 1944 should not be imposed on them for the amount of credit wrongly availed and utilized by them. The appellant filed a detailed reply to the show cause notice vide letter dated 10.3.2008 and 20th of August, 2008 contesting the allegations made in the show cause notice on diverse grounds including that the demand was barred by time and the question of eligibility of a manufacturer to avail CENVAT Credit against outward transportation of goods having been referred to a larger Bench, the proceedings be kept in abeyance, till adjudication.
(3.) COMMISSIONER of Central Excise passed the order dated 23.9.2008 confirming the proposal contained in the show cause notice and, accordingly, levied a sum of Rs. 3,58,717 towards Education Cess under Section 11A of the Act along with interest under Section 11B of the Act accrued thereon and an equal amount was levied as penalty under Section 11C of the Act. The demand towards CENVAT Credit amounting to Rs. 6,21,39,585/- under Section 14 of the CENVAT Credit Rules, 2004 read with Section 11A of the Act along with the interest due on it under Section 14 of the 2004 Rules read with Section 11AB was also confirmed and an equal amount was imposed as penalty.;