M/S BILASRAIKA SONGE INDIA IRON PVT. LTD. Vs. COMMISSIONER OF CENTRAL EXCISE, HYDERABAD

JUDGEMENT

(1.) THIS application seeks waiver and stay in respect of the amounts adjudged against the appellant. After a perusal of the records and hearing both sides, we are of the view that the appeal itself requires to be finally disposed of at this stage. Accordingly, after dispensing with the pre -deposit, we take up the appeal. In adjudication of a show cause notice dated 28.5.2009, the original authority had confirmed demand of Rs. 42,11,371/ - being the CENVAT credit denied on MS Angles, Channels and similar items for the period from May 2004 to March 2009, against the assessee with interest thereon and had also imposed equal amount of penalty on them. Aggrieved, the assessee preferred an appeal before the Commissioner (Appeals) and also filed therein an application for waiver of pre -deposit. The appellate authority by an interim order dated 28.1.2011 disposed of the stay application with a direction to the appellant to pre -deposit 50% of the duty amount within the time prescribed. The interim order further granted an opportunity of personal hearing on appeal on 28.2.2011 subject to compliance with the direction for pre -deposit. On the appointed day, the learned Commissioner (Appeals) did not find any evidence of pre -deposit. The appellant requested for review of the interim order, which was not granted. Eventually on 25.3.2011, the appellate authority took up the assessees appeal and dismissed it, without offering any personal hearing, on the sole ground of non -compliance under Section 35F of the Central Excise Act. The present appeal is directed against the appellate Commissioner's order.

(2.) AFTER hearing both sides, we note that the demand of duty is chiefly contested on the ground of limitation. The relevant show -cause notice was issued on 28.5.2009 for demanding duty for the period 2004 -09. According to the learned counsel for the appellant, only an amount of Rs. 1,67,597/ - is the duty covered by the normal period, which the appellant is prepared to pre -deposit, if need be. It is further submitted that during the material period, there were decisions of this Tribunal which prompted the appellant to believe that they were entitled to avail CENVAT credit on MS Angles and similar items. It was only with the Larger Bench decision in the case of Vandana Global Ltd. Vs. Commissioner of Central Excise, Raipur [ : 2010 (253) E.L.T. 440 (Tri. -LB) that there was a change for the worse for the appellant. In such circumstances, according to the learned counsel, the extended period of limitation was not to be invoked against them. We have also heard the learned Addl. Commissioner (AR) who has claimed a strong case for the Revenue on the strength of Vandana Global Ltd. case (supra).