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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 ..... 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 ₹ 20,45,600/- towards duty and ₹ 84,324/- towards interest and also payment of ₹ 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. The order impugned does not suffer from serious infirmities occasioning grave injustice to the petitioner calling for interference in exercise of extraordinary writ jurisdiction under Article 226 of the Constitution of India. - Writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... LA (Personal Ledger Account) for the clearances effected during December 2010 and subsequent defaulted duty amount without utilizing the Cenvat Credit for the payment of duty. In addition, it was alleged that the petitioner continued to commit default in the payment of duty for the months of December 2010 (Rs.8,78,720/-), February 2011 (Rs.1,80,002), March 2011 (Rs.2,80,649/-), April 2011 (Rs.4,28,906/-) and May 2011 (Rs.2,54,571/-), totaling to Rs.20,45,600/-. Petitioner, having paid the said amount for the months from December 2010 to May 2011 on 21.5.2011 (Rs.18,19,096/- including interest of Rs.56,062/-) and paid interest of Rs.18,262/- vide challan dated 21.5.2011 and challan dated 21.6.2011 (Rs.3,00,000/- including Rs.10,000/- interes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n period and hence, no interest is leviable on Rs.10,45,749/-. As regard penalty, it was stated that petitioner being under a serious liquid crunch, could not pay the duty within the stipulated time and placed reliance upon the decision of this Court in 'COMMISSIONER OF CENTRAL EXCISE, BANGALORE v. NISA INDUSTRIAL SERVICES P. LTD.' (24) STR 644. It was lastly stated that an opportunity of personal hearing be extended. 5. In compliance with the request of the petitioner, a personal hearing was extended on 24.2.2012. The Additional Commissioner of Central Excise, Bangalore, having considered the material on record, the submissions in the personal hearing, regard being had to the provisions of law, declined to accept the plea of the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d counsel further points to sub-Rule (3A) of Rule 8 of the Central Excise Rules, 2002 to submit that if the petitioner commits default in the payment of duty beyond 30 days from the due date as prescribed under sub-Rule (1), then the petitioner is liable to pay excise duty for each consignment at the time of removal without utilizing the Cenvat Credit until the assessee pays the outstanding amounts including interest thereon and in the event of failure it would be deemed that the goods are cleared without payment of duty and the consequences as in the Rules follow. According to the learned counsel though it is an admitted fact that the petitioner committed default during the months of December 2010, January 2011, February 2011, March 2011, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to utilise the Cenvat Credit for payment of duty, penalty and interest. In other words, on failure to pay the duty within the time stipulated under Sub-Rule (1) of Rule 8 and a further period of 30 days under Sub-Rule (3A), the assessee is disentitled to use the credit facility and is liable to pay duty for each consignment at the time of its removal and it is only after the assessee pays the entire outstanding amount including interests thereon, will be entitled to utilise the credit facility and not otherwise. Learned counsel submits that the Appellate Authority having noticed the admitted facts and having prima facie concluded that Rs.10,45,749/- paid by the petitioner by utilizing the Cenvat Credit, though unavailable to the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X
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