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TMI Blog2013 (9) TMI 455X X X X Extracts X X X X X X X X Extracts X X X X ..... efault in payment of duty. It may be a short payment of duty or it may be total failure to pay the duty. There seems to be a narrow contradiction in the judgements of the coordinate benches in the case of Godrej Hershey Ltd. and Meenakshi Associates. The said contradiction needs to be settled by the Larger Bench and the said contradiction is (i) whether a default by an assessee has to be considered as an entire default if he does not make part payment of the duty liability in a particular month, (ii) whether penalty can be imposed under Rule 25 or Rule 27. - matter referred to larger bench. - Appeal No. E/301/08 - - - Dated:- 28-5-2012 - Mr. M.V. Ravindran and Mr. B.S.V. Murthy, JJ. For the Appellant: Shri Doiphode, Adv. For ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sition that once there is a forfeiture of the fortnightly payment facility under 173G1E of the Central Excise Rules 1944 there cannot be any utilisation facility of the facility of making the payment through cenvat credit. It is his submission that the provisions of Rule 173 G 1E and the current provision of Rule 39 are parameterised. 4. After considering the submissions made by both sides, we find that there is an apparent contradiction on the decisions of the Tribunal in the case of Meenakshi Associates (supra) and Godrej Hershey Ltd. (supra). In as much as we find that in the case of Meenakshi Associates, the bench has held as under: 4. Now the facts as stated in the impugned order, are as under: From concerned ER-1(s), it appeared ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is in default for any previous month payment through Cenvat Credit is not a proper discharge of duty liability. This prohibition gets lifted the moment the default is made good along with appropriate interest on defaulted amount and normal situation is restored. So payments made through Cenvat credit during the defaulting period also becomes good payment once the default is made good by paying the defaulted amount along with interest. Interest on deemed non-payment of duty on clearances during the period of default is a separate consequence but not critical in deciding whether the assessees continues to be in default. 17. Now the issue to be decided is the quantum of penalty that is to be paid by the appellant. The argument that section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould virtually amount to read down the Rule 8(1) and to provide something more than what is stated and what is revealed from the actual words used in the said Rule by the rule making authority. It is not the function of the Tribunal to, under the guise of interpretation, to distort the meaning of the statutory provision. 24. 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 has 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stifies the view that we are taking in the matter. For the reasons stated above, therefore, we do not find any infirmity as such in the impugned order by the Commissioner. 6. After perusal of both the judgements and as reproduced hereinabove, we find that there is a contradiction as to whether the default has to be _______ the default by an assessee by not paying a duty or a partial default and to consider the informing provisions of Rule 3A of the Central Excise Rules, 2002 for directing the assessee to follow the rules for debiting the amount in cenvat account consignment-wise. 7. We find that the judgement relied upon by the ld. A.R. in the case of Elson Packaging Industries Ltd. (supra) of the Hon ble High Court of Gujarat seems to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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