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2018 (5) TMI 1188 - AT - Central ExciseCENVAT credit - clearances by utilizing the cenvat credit instead of paying in cash - Rule 8(3A) of Central Excise Rules 2002 - Held that - the Division Bench of Delhi Tribunal in the case of GEI Industrial System Ltd. 2016 (11) TMI 227 - CESTAT NEW DELHI after considering the various decisions of the High Courts and also the fact that the Supreme Court has granted a Stay Order in the case of Indsur Global Ltd. 2014 (12) TMI 585 - GUJARAT HIGH COURT has come to the conclusion that the ratio adopted by the various High Courts and by the Tribunal in similar set of facts is still binding and has allowed the appeal of the assessee. The penalty imposed under Section 11AC of the Central Excise Act read with Rule 25 of the Central Excise Rules 2002 on the assessee set aside - penalty of 5, 000/- under Rule 27 is imposed. Appeal allowed in part.
Issues Involved:
Violation of Rule 8(3A) of Central Excise Rules, 2002 Penalty under Section 11AC of Central Excise Act read with Rule 25D of Central Excise Rules Penalty under Rule 27 of Central Excise Rules Analysis: Violation of Rule 8(3A) of Central Excise Rules, 2002: The case involved two appeals filed against a common impugned order passed by the Commissioner (Appeals) regarding the short payment of central excise duty by the appellants. The appellants were alleged to have utilized cenvat credit for payment of central excise duty, which was not allowed under Rule 8(3A) of the Central Excise Rules, 2002. The original authority confirmed the demand and imposed penalties under Section 11AC of the Central Excise Act and Rule 25D of Central Excise Rules. The appellant argued that Rule 8(3A) has been held unconstitutional by various High Courts, including the Gujarat High Court, and that there was no intention to evade duty. The Tribunal, considering the decisions of various High Courts and a Stay Order by the Supreme Court, set aside the penalty imposed under Section 11AC and upheld a penalty of ?5,000 under Rule 27 for violation of the Rules. Penalty under Section 11AC of Central Excise Act read with Rule 25D of Central Excise Rules: The learned counsel for the appellant contended that the penalty imposed under Section 11AC along with Rule 25D was not legally tenable as there was no intention to evade duty. Citing a previous decision, it was argued that in cases where there was a delay in payment of duty due to interpretation of law and not with the intention to evade payment, Rule 25D should not be applicable for penalty imposition. The Tribunal, after considering the submissions and various decisions, set aside the penalty under Section 11AC, agreeing that there was no intention to evade duty. Penalty under Rule 27 of Central Excise Rules: The appellant was found liable to pay a penalty of ?5,000 under Rule 27 for violation of the Rules. Despite setting aside the penalty under Section 11AC, the Tribunal upheld the penalty under Rule 27, emphasizing the importance of compliance with the Central Excise Rules. The Tribunal's decision was based on the binding ratio adopted by various High Courts and the Tribunal in similar cases, ultimately allowing the appeals in part by setting aside the penalty under Section 11AC and imposing a penalty under Rule 27. In conclusion, the Tribunal found the impugned order unsustainable in law regarding the penalties imposed under Section 11AC and Rule 25D, setting them aside while upholding the penalty under Rule 27 for violation of the Central Excise Rules.
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