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TMI Blog2013 (4) TMI 534X X X X Extracts X X X X X X X X Extracts X X X X ..... vat Credit Rules 2004. 3. Petitioner, when issued with a show cause notice dated 4.1.2012 Annexure-A alleging default in payment of Central excise duty during the period from December 2010 to May 2011 requiring the payment of excise duty on each consignment in cash, without utilizing Cenvat Credit until payment of outstanding amount together with interest. It was further alleged that Rs.1,66,422/- being the duty payable for the month of Oct.2010, was not paid by the 5th of November 2010, but paid on 5.1.2011 which is beyond the period of 30 days, in violation of Rule 8 and sub-Rule (3A) of the Central Excise Rules, 2002. For the month of November 2010, the duty payable was Rs.56,540/- by 5th December 2010, but short paid Rs.33,788/- on 5.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d with Section 11AC of the Central Excise Act, 1944, for utilizing the Cenvat Credit amount towards duty payment. 4. Petitioner caused a reply by letter dated 6.2.2012 stating that the prohibition from utilizing Cenvat Credit account under Rule 8(3A) is with reference to arrears and not the entire credit and therefore, Rs.6,29,750/- (Rs.6,52,502 - Rs.22,752) has been correctly utilized. In addition, it was stated that there being no dispute that all arrears were cleared by May 2011, and if required to pay through PLA again, will be entitled to take credit of that sum in Cenvat Credit account while the entire exercise is revenue neutral, by placing reliance upon the decision of CESTAT in 'AIR CONTROL and CHEMICAL ENGINEERING CO. LTD. v. CCE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,000/- under Rule 25 of the Central Excise Rules, 2002. 6. That order, when carried in appeal before the Commissioner of Central Excise (Appeals-I) together with an application for stay/waiver of pre-deposit, the Appellate Authority by order dated 31.12.2012 Annexure-D directed the petitioner to make a pre-deposit of Rs.10,45,749/-, in cash, in terms of the proviso to Section 35F of the Central Excise Act, 1944 and to report compliance by 25.1.2013 failing which appeal would stand dismissed for non-compliance. Hence, this petition. 7. Learned counsel for the petitioner points to Rule 8(1) of the Central Excise Rules, 2002 to submit that duty of goods removed from the factory or the warehouse during a month is required to be paid by the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of Rs.20,45,600/- and Rs.84,324/- towards interest, was paid, in respect of consignments removed during the months of December 2010 to May 2011 and therefore, the Appellate Authority was not justified in directing a pre-deposit as it would amount to double payment. As regard the reason for filing the application for waiver for pre-deposit, it is submitted that due to financial crunch in the petitioner factory the request was made. 9. Learned counsel for the revenue, per contra, seeks to sustain the order impugned as being well merited, fully justified and not calling for interference. According to the learned counsel, sub-Rule (3A) of Rule 8 of the Central Excise Rules, 2002 is unambiguous and does not admit of any interpretation other t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay of following month in any other case, and a further period of 30 days under Sub-Rule (3A) is disentitled to make use of the Cenvat Credit. In the admitted facts, petitioner defaulted in the payment of duty for the months of December 2010 to May 2011, but did so with interest on 21.5.2011 in a sum of Rs.20,45,600/- towards duty and Rs.84,324/- towards interest and also payment of Rs.10,45,749/- towards duty by utilizing the Cenvat Credit, without disclosing the particulars against which it was paid nor the date of payment. Hence, it is not possible for this Court, at this stage to accept the plea of the petitioner as aired by its learned counsel, while I find force in the submission of the learned counsel for the revenue. 11. The order i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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