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TMI Blog2003 (1) TMI 359X X X X Extracts X X X X X X X X Extracts X X X X ..... duty on monthly basis in terms of Rule 173-G(1) of the Rules. However, during the scrutiny of their RT-12 return for the quarter ending 30-9-2000 to 31-3-2001, it revealed that they had utilised the Cenvat credit accumulated during the first fortnight of the month towards payment of duty relating to the preceding month. They availed and utilised the credit of Rs. 6,04,993/- during the period September, 2000 to March, 2001 which was not due to them and as such, there was a short payment of duty of this amount by them. They also did not follow the procedure prescribed under Rule 173AB and Rule 173G and thereby rendered themselves liable for penal action. They were served with show cause notice and after getting their reply, the Additional Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 755 (Guj.) and Siemens Ltd. v. CCE, Aurangabad - 1999 (34) RLT 831. 5. On the other hand, learned JDR has reiterated the correctness of the impugned order of the Commissioner (Appeals) and contended that even in the absence of any mala fide intention, still penalty could be imposed under Rule 173Q for having evaded the payment of duty and cleared the goods against insufficient balance in RG-23 Part-II and PLA. He has referred to the ratio of law laid down by Bombay High Court in Kirloskar Brothers Ltd. v. Union of India Others - 1988 (34) E.L.T. 30 (Bom.). 6. I have gone through the record and heard both sides. 7. In my view, the contention raised by the Counsel is wholly mis-conceived and is not liable to be accepted. The violatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before service of notice on him under sub-section (1), and informs 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 duty so paid. This sub-section nowhere enacts that initial fault or lapse on the part of the assessee shall stand wiped out even for the purpose of imposition of penalty under Rule 173Q which is an independent rule. In the instant case, as observed above, the deposit of duty along-with interest had been made by the appellants not of their own, without having been caught by the central excise officers while scrutinising their RT-12 return, of having evaded payment of duty. The ratio of law laid down in Banian Berry Bearing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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