9911796707
TMI Blog2013 (4) TMI 382X X X X Extracts X X X X X X X X Extracts X X X X ..... ules for making the payments from cenvat credit when they were required to make the payments in cash for each consignment. It is seen from the show cause notice dated 25.11.10 that no penalty under Rule 27 of the Central Excise Rules has been proposed against appellant No.1. Accordingly, the penalties that Rs.9,96,740/- imposed against appellant No.1 is required to be set aside. So far as imposition of penalties upon appellant No.2 and 3 are concerned, it is seen that the goods were cleared on payment of duty but instead of making the payment in cash the payments were made from cenvat credit. Therefore the goods were cleared on payment of duty and the same was duly reflected in the returns filed by the appellant No.1. Thus it cannot be h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with interest under Section 11AB of the Central Excise Act, 1944. A penalty of Rs.9,96,740/- was also imposed upon the appellant No.1 under Rule 25 of the Central Excise Rules, 2002 read with Section 11AC of the Central Excise Act, 1944. Penalty of Rs.5 lakh and Rs.1 lakh were imposed upon the appellant No.2 and 3 respectively. The order passed by the adjudicating authority was upheld by Commissioner (Appeals) in his order dated 8.5.12. 3. Ld. advocate argued that the disputed duty amount of Rs.3,97,902/- has been paid vide GAR challan No.5 dated 21.7.12 along with interest and they are not contesting that issue. It is being contested by appellant No.1 that penalty under Rule 25 of the Central Excise Rules is not imposable in their case. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... find that even according to the amended provisions of Rule 8, as contained in Rule 8A, the failure on the part of the assessee to pay duty on consignment basis from PLA shall be deemed as if such goods have been cleared without payment of duty and the consequences and penalties as provided in these Rules shall follow. One thing become clear from the above that consequence of such failure on the part of the assessee would meet with the penal provisions as contained in the Rules. I would like to observe here that an identical provision was available in Rule 8, in the shape of sub-Rule 4 providing the same consequence and penalties in terms of the Rules, which already stands considered by the Tribunal in the case of Saurashtra Cement Limited. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .1 is required to be set aside. 7. So far as imposition of penalties upon appellant No.2 and 3 are concerned, it is seen that the goods were cleared on payment of duty but instead of making the payment in cash the payments were made from cenvat credit. Therefore the goods were cleared on payment of duty and the same was duly reflected in the returns filed by the appellant No.1. Under the circumstances, it cannot be held that there was any malafide intention on the part of appellant No.2 and 3 to evade payment of duty. Therefore I do not think it to be a case where penalties under Rule 26 are imposable upon appellant No.2 and 3. The only default in this case was utilising cenvat credit and there is an interest loss to the Revenue from the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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