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TMI Blog2013 (3) TMI 386X X X X Extracts X X X X X X X X Extracts X X X X ..... ujarat High Court cited by the Appellant does not discuss the implication of the wordings of Rule 8(3A). As regards non-mention of the specific clause of Rule 25, on going through the show cause notice it is found that nature of contravention has been specifically mentioned. Therefore, non-mention of exact clause of sub-rule (1) of Rule 25 in the show cause notice would not vitiate the same. Therefore penalty has been correctly imposed under Rule 25. Taking into account the fact that default attracting the provisions of Rule 8(3A) was only for 17 days, the duty involved on the goods cleared during this period which was required to be paid consignment-wise, is only Rs. 1,07,067/- and this duty had been paid next month, penalty of Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the time of removal, without utilizing the Cenvat Credit, till the date the assessee pays outstanding amount including interest thereon and in the event of any failure, 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 and shall follow . Since during the period from 1-5-2010 to 17-5-2010 the appellant had not paid duty consignment wise, the Department treating the clearances made as without payment of duty, issued a show cause notice dated 8-9-2010 for demand of duty amounting to Rs. 1,07,067/- on the goods cleared during the period of forfeiture and also for imposition of penalty under Rule 25(1) of Central Excise Rules, 2002 on them. This sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of Solar Chemferts Pvt. Ltd. v. C.C.E., Thane-I reported in 2012 (276) E.L.T. 273 that since Rule 27 of Central Excise Rules, 2002 was not invoked in the show cause notice, no penalty is imposable on the appellant even under this Rule, that even the penalty under Rule 25(1) of Central Excise Rules is not imposable as the exact clause of Rule 25(1) under which penalty is sought to be imposed has not been specified in the show cause notice which is necessary in terms of the judgment of the Apex Court in the case of Amrit Foods v. C.C.E., UP reported in 2005 (190) E.L.T. 433 (S.C.) and that in view of these circumstances, the impugned order upholding imposition of penalty to the extent of Rs. 25,000/- on the appellant under Rule 25 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterest. Rule 8(3) provides that duty payable for a particular month can be paid upto the period of 30 days from the due date with interest for period of delay without attracting penalty. Rule 8(3A) provides that when the duty due for a month is not paid even on expiry period of 30 days from the due date, the assessee would forfeit the facility to pay duty on monthly basis and shall pay duty consignment wise without utilization of Cenvat credit till the duty due is paid along with interest. In this regard, Rule 3A is reproduced below : If the assessee defaults in payment of duty beyond thirty days from the due date, as prescribed in sub-rule (1), then notwithstanding anything contained in said sub-rule (1) and sub-rule (4) of rule 3 of CE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is case during the forfeiture period the appellant did not pay the duty consignment wise and only through PLA, clearances would be treated having been made without payment of duty and hence the provisions Rule 25(1) would be attracted which provides for imposition of penalty for clearances of the goods in contravention of the provisions of the Rules. The judgment of Hon ble Gujarat High Court cited by the ld. counsel for the Appellant does not discuss the implication of the wordings of Rule 8(3A). As regards non-mention of the specific clause of Rule 25, on going through the show cause notice I find that nature of contravention has been specifically mentioned. Therefore, non-mention of exact clause of sub-rule (1) of Rule 25 in the show cau ..... X X X X Extracts X X X X X X X X Extracts X X X X
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