9911796707
TMI Blog2013 (6) TMI 180X X X X Extracts X X X X X X X X Extracts X X X X ..... nly through PLA when facility to pay the duty under fortnightly basis not available during the forfeiture period. As per order dated 04.6.2007, this Bench held that demand of duty and interest is not sustainable against the appellant and penalty was also reduced from Rs.5,57,138/- to Rs.40,000/-. Department took the case to Hon'ble High Court of Gujarat vide Tax Appeal No. 1686 of 2007. The Hon'ble High Court vide order dated 18.02.2009 remanded the matter to CESTAT with the directions to decide this case after considering the decision of CESTAT, Mumbai in the case of Elson Packaging Industries Pvt. Limited vs. CCE Surat [2004 (169) ELT 171 (Tri. Mumbai)]. This case was again decided by CESTAT Ahmedabad vide order dated 28.8.2009 in the lig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nbsp; (ii) The due date on which full payment of instalment are to be made is violated for the third time in a financial year, whether in succession or otherwise, then the manufacturer shall forfeit the facility to pay the dues in instalments under this sub-rule for a period of two months, starting from the date of communication of an order passed by the proper officer in this regard and during this period the manufacturer shall be required to pay excise duty for each consignment by debit to the account current referred to in Clause (b) and in the event of any such failure it will be deemed as if such goods have been cleared without payment of duty and the consequences and penalties as provided in the Central Excise Rules shall follow." 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same was not meant for any distinction. As such, reference by the learned Advocate to Rule 9 and pre 2000 Rule 173G to impress upon his arguments that debit in credit account is also utilisation of account current cannot be accepted." 6. When the case was taken before the Hon'ble High Court of Gujarat by M/s. Elson Packaging Industries Pvt. Limited, the issue was interpreted by High Court in Para -2 of the order dated 09.5.2005 [reported at -2010 (257) ELT 509 (Guj)] as follows:- "2. On going through the impugned order of the Tribunal it is apparent that on plain reading of provisions of Rule 173G(1)(e) of the Central Excise Rules, 1944 (the Rules) there is no infirmity in the order of the Tribunal which would give rise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his order in appeal dated 24.5.2005. There is no doubt that appellant will be entitled to the credit what he has utilised in payment of Central Excise duty earlier when the entire default period duty and interest is paid in cash or through PLA. 8. So far as imposition of equivalent penalty upon the appellant is concerned, it is held that penalty is imposable under Rule 173Q (1) of Central Excise Rules, 1944 or Rule 25(1) of the Central Excise Rules 2001 because appellant's conduct has led to an act which is deemed to be clearances without payment of duty and also the act on the part of the appellant is liable to penalty. However, it is not obligatory to impose penalty equivalent to the duty demanded under Rule 173Q of the Central Excise R ..... X X X X Extracts X X X X X X X X Extracts X X X X
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