9911796707
TMI Blog2010 (2) TMI 440X X X X Extracts X X X X X X X X Extracts X X X X ..... Demand of interest and penalties not sustainable. - E/469/2008-SM(BR) - 279/2010-SM(BR)(PB) - Dated:- 3-2-2010 - Shri M. Veeraiyan, Member (T) Shri J.P. Kaushik, Advocate, for the Appellant. <?xml:namespace prefix = st2 /> Shri I. Baig, SDR, for the Respondent. [Order]. - This is an appeal against the order of the Commissioner No. 46/2007/CE/JP-II, dated 18-12-2007. 2. Heard both sides. 3.1 The relevant facts, in brief, are that the appellants took a wrong credit in PLA amounting to Rs. 1,32,000/-. This error has led to short payment of education cess amounting to Rs. 34,498/- relating to the period July, 2006. This error in taking credit consequent to short payment of education cess was detected by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ionally make a short payment of Rs. 34,498/- attracting consequences as held by the Commissioner. The show cause notice also did not attribute mens rea on the part of the appellant. He submits that inasmuch as the appellant themselves detected the error and made the payment of short paid amount along with interest, show cause notice itself should not have been issued to them in terms of Section 11A(2B) of the Central Excise Act. He also submits that as the Commissioner has held the payment by the Cenvat credit as discharge of liability towards the duty, the question of demanding interest does not arise. Further, no ingredients of Rule 25 of Central Excise Rules, 2002 is present to impose a penalty of Rs. 50,000/-. 5. Ld. SDR submits that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the person, chargeable with the duty, may pay the amount of duty [on the basis of his own ascertainment of such duty or on the basis of duty ascertained by a Central Excise Officer] before service of notice on him under subsection (1) in respect of the duty, and inform the Central Excise Officer of such payment in writing, who, on receipt of such information shall not serve any notice under sub-section (1) in respect of the duty so paid : Provided that the Central Excise Officer may determine the amount of short payment of duty, if any, which in his opinion has not been paid by such person and, then, the Central Excise Of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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