IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.10646 of 2009 (O&M) Date of decision: 30th July, 2009 M/s Modern Steels Limited … Petitioner Versus The Commissioner (Appeals), Central Excise Chandigarh and another … Respondents CORAM: HON’BLE MR. JUSTICE T.S. THAKUR HOB’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. O.P. Goyal, Senior Advocate with Mrs. Anjana, Advocate for the petitioner. Mr. H.P.S. Ghuman, Advocate for the respondents. T.S. THAKUR, CJ. (ORAL) Civil Misc. 12591-93 of 2009 CM applications are allowed subject to just exceptions and Annexure R-1 is taken on record. Civil Writ Petition No.10646 of 2009 The Commissioner (Appeals), Central Excise, Chandigarh has, by orders dated 13th February, 2009 and 6th July, 2009, declined to grant total waiver of pre-deposit of duty and penalty leveled upon the petitioner herein, holding that the appellant petitioner herein had not made out any case for such a waiver. Aggrieved, the petitioner has filed present writ petition challenging the said orders. Civil Writ Petition No. 10646 of 2009 (O&M) Mr.H.P.S.Ghuman has appeared on behalf of the respondents, pursuant to the notice issued by us on 20th July, 2009. With consent, the petition has been heard for final disposal. Appearing for the petitioner, Mr. O.P. Goyal argues that there are three distinct circumstances that need to be taken note of, while deciding the issue whether the petitioner has made out a case for waiver of the pre-deposit. Firstly, he contends that the question whether the CTD bars, angles and channels etc. qualify for grant of CENVAT credit, has been referred to a Larger Bench of the Tribunal in ‘Vandana Global Ltd. v. Commissioner of Central Excise, Raipur’ 2008 (230) E.L.T. 169. He has placed on record a copy of the said order in support of his submission that the question already engages attention of a Larger Bench of the Tribunal and therefore needs to be examined at a greater depth by the Tribunal making out a case of grant of complete waiver. Second circumstance he pointed out is related to the financial health of the petitioner. He states that the petitioner suffered a net loss and thus completely qualifies for complete waiver. He has, in this regard, drawn our attention to the audited balance sheet of the petitioner for the year 2008-09, which according to Mr. O.P. Goyal shows a net loss of Rs.4.72 crores for the said year. This balance sheet was not available and could not be produced before the Tribunal, when the application for waiver of pre-deposit was heard and disposed of. Third limb of Mr.O.P.Goyal’s argument is based on the amendment made to the CENVAT Credit Rules, 2004 in terms of Notification dated 7th July, 2009. He urges that the definition of the word ‘input’ itself has undergone a change, which would make a material difference in so far as the entitlement of the petitioner to claim CENVAT credit is concerned. All these aspects, we find, have not been noticed by the Commissioner (Appeals) while disposing of the petitioner’s application for 2 Civil Writ Petition No. 10646 of 2009 (O&M) complete waiver of the pre-deposit. A reading of the orders in question would show that the same do not either refer to or deal with the aforesaid aspects, even on a prima facie basis. This may partly be because of the fact that these developments were not available to the Commissioner (Appeals) at the relevant time for any such consideration. Now that these aspects have been highlighted and can be looked into by the Commissioner (Appeals), we see no reason that he should not do so. We accordingly allow this writ petition and quash the impugned orders dated 13th February, 2009 and 6th July, 2009, and direct that the learned Commissioner (Appeals), Central Excise, Chandigarh shall hear the application for waiver of pre-deposit afresh and pass final order in accordance with law, keeping in view the submissions which the parties may make before him, as also the three aspects which have been highlighted in the body of this order. No costs. Petitioner shall appear before the Commissioner for further directions on 18th August, 2009 at 10.00 a.m. Copy of order be given dasti on payment of usual charges. [T. S. THAKUR] CHIEF JUSTICE [KANWALJIT SINGH AHLUWALIA] JUDGE July 30, 2009 rps 3