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TMI Blog2013 (9) TMI 313X X X X Extracts X X X X X X X X Extracts X X X X ..... ER OF C. EX., BHOPAL [2010 (11) TMI 263 - CESTAT, NEW DELHI ] - As far as term “default” is concerned, the same has not been defined either in the said Rules or in the Central Excise Act, 1944 - The term “default” had been defined in the Black’s Law Dictionary 6th Edition to mean “by its derivation, a failure - An omission of that which ought to be done. Specifically, the omission or failure to perform a legal or contractual duty”. Apparently, therefore, any omission or failure to comply with the obligation relating to payment of duty in the manner prescribed and within the period specified under Rule 8(1) of the said Rules would amount to default in payment of duty - It may be a short payment of duty or it may be total failure to pay the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the duty had to be paid on or before the 5th day of October, 2008. The duty payable for the clearances made during March, 2008 was Rs. 3,14,237/- but the amount of duty paid by the appellant in that month was Rs. 3,07,237/- only. The arithmetical error was detected later and the differential amount of duty (Rs. 7,000/-) was paid on 4-6-2008. The interest on this amount of duty for the period of delay was paid on 29-7-2008. For the quarter, April to June, 2008, the total duty payable was Rs. 39,832/- on finished goods and inputs cleared as such. Towards this liability, the appellant paid an amount of Rs. 22,984/- from PLA and an amount of Rs. 16,848/- from CENVAT account, the latter attributable to the inputs cleared as such. 3. As per Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epartment and an appeal was preferred to the Commissioner (Appeals) against the dropping of demand of duty for the month of May, 2008. It was contended before the appellate authority that the assessee was not authorized, under Rule 8 of the CER, 2002, to use CENVAT credit for payment of duty till 29-7-2008 (the date on which the defaulted amount of duty for the month of March, 2008 was paid with interest). This contention was accepted by the Commissioner (Appeals) and accordingly the lower authority was directed to recover appropriate amount of duty from the assessee. The present appeal of the assessee says that the appellate Commissioner did not consider certain decisions cited by them. 4. Ld. DR has referred to the decisions cited by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty only which did not attract Rule 8(3A) of the CER, 2002 is not sustainable inasmuch as a total failure to pay duty and a short-payment of duty are, both, in the category of default in payment of duty. In this connection, she has relied on Godrej Hershey Ltd. v. CCE, Bhopal [2011 (263) E.L.T. 663 (Tri.-Del.)]. 6. It has also been submitted that, once the amount of duty demanded by the lower appellate authority is paid by the assessee from PLA, they can claim recredit of the CENVAT credit irregularly utilized. In this connection, ld. DR has referred to Sterling Rubber Products v. CCE, Bhopal [2009 (234) E.L.T. 82 (Tri.-Del.)]. 7. I have considered the submissions. The view taken by the ld. Commissioner is that, in the wake of def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ently, there was a bar on utilization of CENVAT credit for payment of duty on any excisable goods, whether final product or inputs as such, cleared from the factory in the subsequent quarter. Admittedly, inputs as such were removed from the factory in May, 2008 on payment of duty by debit in CENVAT account, which was done in breach of the prohibition embodied in sub-rule (3A) of Rule 8 of the CER, 2002. As rightly held by the ld. Commissioner (Appeals), the assessee is bound to pay equivalent amount of duty from PLA, with interest thereon under Section 11AB of the Central Excise Act. Upon such payment of duty with interest, the assessee will be entitled to recredit of the amount irregularly debited in CENVAT account at the time of clearance ..... X X X X Extracts X X X X X X X X Extracts X X X X
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