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TMI Blog2009 (11) TMI 748X X X X Extracts X X X X X X X X Extracts X X X X ..... U.P.) manufacture Kraft paper/Kraft liner chargeable to Central Excise Duty under Chapter 48 of the Central Excise Tariff in their paper division and also the M.S. Ingots chargeable to Central Excise Duty under Chapter 72 of the Central Excise Tariff in their steel division. On scrutiny on the ER-1 returns for the period from July, 2006 to October, 2006 in respect of their steel division, it appeared that the appellant had contravened the provisions of Rule 8(3A) of the Central Excise Rules, 2002, as amended, inasmuch as they did not pay Education Cess amounting to Rs. 5,000/- on the steel ingots cleared during the month of July, 2006 by the due date i.e. 5-8-06 and this payment was not made even during the grace period of thirty days from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 The Commissioner adjudicated the show cause notice vide impugned order-in-original No. 07/COMMR./MRT-I/2009 dated 17-3-09 by which the duty demand of Rs. 1,03,94,960/- was confirmed under Section 11A(1) of the Central Excise Act along with interest on this duty at the applicable rate under Section 11AB of Central Excise Act, and penalty of Rs. 5,000/- was imposed under Section 25(1)(a) of the Central Excise Rules, 2002 for contravention of the provisions of Rule 8(3A) of the Central Excise Rules. In this order, the appellants were also asked to pay the duty demand and interest from PLA/cash only. 1.2 It is against this order that the present appeal along with the stay application have been filed. 2. Shri Alok Arora, Advocate, the lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rly provides that it is to be calculated on the aggregate of the duties of excise which are levied and collected by the Central Government in the Ministry of Finance (Department of Revenue), under the provisions of Central Excise Act, 1944 or any other law for the time being in force, that the adjudicating authority has not dealt with the submissions made in defence reply by the appellant that in the month of July, 2006 there was sufficient balance in the appellant s Education Cess Cenvat credit account to pay the Education Cess payable during that month but due to clerical mistake the Cenvat credit balance in respect of Education Cess was not utilised and that in view of this, there was no default and hence the confirmation of duty demand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stries (Development and Regulation) Act, 1951, though levied by the Ministry of Industry, is a duty of excise being collected by the Central Excise Department. He also cited the judgment of the Tribunal in the case of CCE, Indore v. Kapil Steel Ltd. reported in 2005 (186) E.L.T. 321 (Tri. - Del.), wherein it was held that in case of default in payment of duty in fortnightly instalments, the appellant, as per the provisions of Rule 8 of the Central Excise Rules, 2001, were liable to pay the duty during the period of default from the account current instead of from the Cenvat credit account. He also cited the Tribunal s judgment in the case of Star Drugs and Research Labs Ltd. v. CCE, Chennai reported in 2005 (184) E.L.T. 386 (Tri. - Chennai) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, therefore, treats the period from 5-9-06 to 1-10-06 as default period and invoking the provisions of Rule 8(3A), has denied the facility of monthly payment of duty during this period and has also the denial the facility to pay the duty through Cenvat credit. 4.2 On going through the ER-1 returns for July, 2006, we find that the Cenvat credit balance in respect of basic excise duty available as on end of July, 2006 was Rs. 13,91,177/- and Education Cess credit balance available was Rs. 29,195/-. Since the basic excise duty payable for the month of July, 2006 was Rs. 13,52,180/- and Education Cess payable was Rs. 29,041/-, the entire basic excise duty as well as Education Cess was paid by utilising the Cenvat credit balance available b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the duties of excise (including special duty of excise or any other duty of excise but excluding Education Cess on excisable goods) which are levied and collected by the Central Government in the Ministry of Finance (Department of Revenue), under the provisions of Central Excise Act, 1944 (1 of 1994) or under any other law for the time being in force. The Central Board of Excise and Customs vide Circular No. 345/2/04-TRU dated 10-8-04 has clarified that Education Cess was to be calculated on the aggregate of the excise/customs duties (excluding duties of customs like anti-dumping duty, safeguard duty etc.) levied and collected by the Department of Revenue, and only such duties which were levied and collected as duty of excise by the Depa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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