9911796707
TMI Blog2006 (9) TMI 380X X X X Extracts X X X X X X X X Extracts X X X X ..... Since they could not pay the amount of duty within 30 days from 31-3-2002, the Dy. Commissioner of C.E. Customs, RKL-II Division, Rourkela, vide his order dt. 13-11-2002 forfeited the facility of paying C.E. duty in instalments and directed the applicant to pay duty consignment-wise by debiting from PLA for a period of two months. (c) The said defaulted amount was paid by the applicant in instalments between 25-9-2002 and 1-4-2003 by debiting Rs. 4 lac from PLA and the rest amount i.e. Rs. 5,67,200/- from Cenvat credit a/c [including Rs. 99,000/- from Cenvat credit (Capital Goods) a/c]. (d) However, during the aforesaid period of two months, during which the applicant was under orders to pay duty only by debiting PLA, the applicant used Cenvat credit a/c for payment of duty amounting to Rs. 19,29,928/-. This act, according to the provisions of Rule 8(4) of the C.E. Rules, 2002 was to be deemed as removal without payment of duty and accordingly the impugned Show Cause Notice was issued by the Jt. Commissioner of C.E. Customs, Bhubaneswar-II Commissionerate asking the applicant to show cause to the Jt. Commissioner of C.E. Customs, Bhubaneswar-II Commissionerate, Central Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir Cenvat A/c. 6. Report under Section 32E of the C.E. Act, 1944 was received on 30-3-2006 from the respondent Commissioner of C.E, Bhubaneswar-II. In the said report it was stated as follows - (i) M/s. Orissa Industries Ltd., Lathikata (herein after referred to as the assessee) are engaged in the manufacture of Refractories and Refractory products falling under Chapter 38, 68 and 69 of the Central Excise Tariff and clearing the same on payment of appropriate Central Excise duty. The assessee was discharging their duty liability as per Rule 8 of the Central Excise Rules, 2002. The assessee was found to have defaulted in payment of duty amounting to Rs. 9,67,200/- for removal of excisable goods cleared during second fortnight of March, 2002. As the amount was not paid by them within 30 (Thirty) days from the due date of payment along with interest as required under the provisions of Rule 8(3) ibid, the Deputy Commissioner, Central Excise, Rourkela-II Division by virtue of the provisions of Rule 8(4) ibid, vide his order dated 13-11-2002 forfeited the facility of payment of Central Excise duty in installments (computed on fortnightly basis) and directed the assessee to make p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same is discharged beyond a period of 30 days from the due date then the Assistant/Deputy Commissioner shall order for forfeiture of the installment payment facility for a period of 2 months or till such date all dues are paid which ever is latter and during this period the assessee is required to pay excise duty for each consignment by debit to the account current (PLA). In the instant case, the assessee has violated the above provisions of law inasmuch as they have debited the duty liability from their Cenvat Account. In an identical case Hon ble Tribunal in the case of GKW Ltd., Titlagarh vide its Order No. A-365/KOL/2003, dated 25-4-2003 has categorically held that even if the amount is paid from the Cenvat Account and not paid through PLA as per the provisions of law, by virtue of the deeming provisions of law the clearances have to be considered as having been made without payment of duty. In such case the duty, interest and penalty are to be paid by the defaulter. (iv) Therefore, basing on the facts and circumstances of the case and in view of the clear provisions of law and the aforesaid judicial pronouncement the application made by the applicant may not be consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hrough, as would be evident from the fact that it approached BIFR and got a package from BIFR and that there was absolutely no mala fide in the intention of the department. It is thus humbly prayed that the Applicant may kindly be granted immunity from interest u/s 11AB, penalty u/r 25 and prosecution under any Central Act. (v) While dealing with similar situations, in the following cases, the Hon ble Commission has granted immunity to the Applicant from interest, penalty and prosecution under any Central Act u/s 32K. Orissa Industries Ltd. (Final Order No. F-75/SE/06-SC(KB), Dtd. 24-5-2006 [2006 (205) E.L.T. 1102 (Sett. Comm.)]); M/s. Top Tech Steels P. Ltd. (Final Order No. F-64/C.E./SC(KB), dtd. 23-3-2006); M/s. Bajrang Ispat Ltd. (Final Order No. F-65/CE/06-SC(~), dtd. 24-3-2006.); MSP Steels Pvt. Ltd. - (Final Order No. F-20/CEX/2005-SC (KOL), dated 26-7-2005) [2006 (202) E.L.T. 161 (Sett. Comm.)]. MSP Sponge Pvt. Ltd. (Final Order No. F-17/CEX/2005-SC(KOL), dt. 11-7-2005 [2006 (202) E.L.T. 157 (Sett. Comm.)]; Malwa Industries Ltd. reported in 2002 (143) E.L.T. 444 (Sett. Comm.); Amines Plasticisers Ltd. reported in 2003 (160) E.L.T. 777 (Sett. Comm.); K.B. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t any financial gain with reference to the quantum of C.E. duty has been duly considered. In the case law cited by the Revenue it is seen that in the said order, while upholding demand of duty and interest in comparable circumstances, the appellant therein was not found benefited by the mode of payment as during the same period they paid duty both from PLA and from Cenvat a/c. (c) We therefore, settle the case in terms of Section 32F of the Central Excise Act, 1944 under the following terms and conditions - Duty of Central Excise - The entire amount of 19,29,928/- (delayed payment w.r.t. Rule 8) as demanded in the SCN stands already adjusted. Interest - The applicants are granted immunity from payment of any interest in consideration of merit of the case as well as in view of maintaining parity with the published decisions given by other Benches of the Commission on similar facts and circumstances of the case, as cited supra. Fine and Penalty - The Commission extends immunity from payment of fine and penalty. Prosecution - The applicants are granted immunity from prosecution under the Central Excise Act, 1944. (d) (i) The above immunities are granted in terms ..... X X X X Extracts X X X X X X X X Extracts X X X X
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