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TMI Blog2011 (10) TMI 145X X X X Extracts X X X X X X X X Extracts X X X X ..... fresh consideration - W.P. No.19909 of 2011 MP.No. 1 of 2011 - - - Dated:- 29-10-2011 - Chitra Venkataraman, J Appellant Rep by: Mr. Mohammed Shaffiq Respondent Rep by: Mr. P Mahadevan Senior Central Govt. Standing Counsel JUDGEMENT By consent of both parties, the writ petition itself is taken up for final hearing. On notice, the Revenue has filed its counter. 2. The petitioner herein seek to issue of a Writ of certiorarified mandamus to quash the order of the first respondent herein viz., Customs Central Excise Settlement Commission dated 23.6.2011 with direction to the first respondent to hear the matter afresh and on merits and in terms of Rule 8(3A) of the Central Excise Rules, 2002 with its explanation. 3. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 2147895 4. It is stated that the petitioner defaulted in payment of duty from June 2009 and subsequent months, wherein the duty was paid with interest. The dispute herein relates to the payment of duty relatable to June 2009, which was paid in February 2010. Considering the default thus committed, the Officer concerned reversed CENVAT credit to the tune of Rs.22,17,863/- relevant to the period from June 2009 to February 2010 as credit not eligible. A notice was issued on 25.8.2010 taking the view that the assessee had utilised CENVAT credit during the period during which the duty should have been paid in terms of Rule 8(3A). As the petitioner had contravened the provisions of Rule 8(3A) and had removed the goods utilisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding 30 days in paying respective duty amounts during the period July 2009 to January 2010. However the duty relating to June 2009 due on 5.7.2009 for a sum of Rs.2,84,000/- was paid on 5.2.2010 along with the applicable interest. Hence, the denial of CENVAT credit was unsustainable. 7. On a specific query made by the first respondent as to whether the assessee was willing to pay the amount of Rs.22,17,863/- for the period 5.8.2009 to 4.2.2010, the petitioner contended that the question of payment of duty by cash did not arise and the payment through CENVAT credit was correct in law. In the light of the provisions of the Act thus available under Rule 8(3A) of the Act, the petitioner sought for settlement of dispute. In considering the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision made by it. Aggrieved by the same,the petitioner has come before this Court. 9. Learned counsel appearing for the petitioner herein brought to my attention, Rule 8(3A) and the explanation appended thereto, which reads as follows:- "Rule 8. Manner of Payment - (1) The duty on the goods removed from the factory or the warehouse during a month shall be paid by the 6th day of the following month, if the duty is paid electronically through internet banking and by the 5th day of the following month, in the other case: Provided that in case of goods removed during the month of March, the duty shall be paid by the 31st day of March: ...................... [(3A). If the assessee defaults in payment of duty beyond thirty days ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to its account also had to be reckoned into the payment of duty. Thus, in the light of the fact that the explanation expands the scope of the expression of 'duty' or 'duty of excise' inclusive of the amount payable in terms of CENVAT credit under the said Rule, as relevant in the matter of construing the Rule 8(3A) of the Act, learned counsel for the petitioner has submitted that the claim of the assessee merits reconsideration at the hands of the first respondent herein. 11. A reading of the order shows that even though the assessee had not made a direct reference to the Explanation appended to Rule 8(3A) of the Act in support of its contention, yet, in paragraph 7.2, the first respondent recorded the submission of the petitioner as to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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