9911796707
TMI Blog2012 (9) TMI 814X X X X Extracts X X X X X X X X Extracts X X X X ..... osit of Rs. 10,000/- towards penalty and interest payable - E/2712/2010 - 819/2011-EX(PB) - Dated:- 12-8-2011 - Justice R.M.S. Khandeparkar, Shri Mathew John, JJ. REPRESENTED BY : Shri A.P. Mathur, Advocate, for the Appellant. Shri I. Beg, DR, for the Respondent. [Order per : Mathew John, Member (T)] The Appellant did not pay the duty payable by cash, as per their ER-1 return for the month of Oct. 2006 by the due date i.e. 5-11-2006. Neither did they pay it with interest, within 30 days from the due date as provided in Rule 8(3A) of the Central Excise Rules, 2002. There was similar default for the month of Nov. 2006 and Dec. 2006 also. 2. In such circumstances Rule 8(3A)of the Central Excise Rules enjoins certain pena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defaulting periods are without proper discharge of duty amounting to Rs. 2,90,02,021/-, that is, the amount of Cenvat credit utilized during the said period. 5. A Show Cause Notice in respect of the above contravention of Rules was issued which was adjudicated resulting in confirmation of duty demanded amounting Rs. 2,90,02,021/- under Section 11A of the Act. As already explained this amount corresponds to Cenvat credit utilized by the Appellants during the defaulting periods. Interest under Section 11AB was also demanded. A penalty equal to the duty demanded was also imposed under Section 11AC of the Act. 6. Aggrieved by this order the Appellant has filed this appeal before the Tribunal. 7. The Appellants submits the following : ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which is permissible under Rule 8(1) if there is no such default. (ii) the duty should be paid without availing Cenvat credit whereas duty payment through Cenvat is allowed if default was not there. The Appellant did not comply with either of the requirements. 10. Now we have to look at the penal consequences prescribed by Rule 8(3A). The Rule says that if the above two conditions it shall be deemed that such goods have been cleared without payment of duty and the consequences and penalties as provided in these rules shall follow . 11. It is relevant to note that what is prescribed is consequences and penalties as provided in these Rules not consequences and penalties as provided in the Act . This is a second core argument o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id earlier will be in due discharge. With the result the only consequence that will arise will be payment of interest and penalty. Interest will be payable so long as there is no proper discharge of duty. This is a consequence from Act but that will follow even if it is not mentioned in the Rules. But interest will be payable from the date of each clearance to the date on which the default is made good. This is so because once the defaulted amount is paid, thereafter the payment made through Cenvat become proper even if it is paid before the date on which defaulted amount is paid. 14. If the Rules alone are seen the consequences are confiscation of goods and penalties under Rule 25 and Rule 26. The department has not taken the initiative ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
