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TMI Blog2013 (12) TMI 1398X X X X Extracts X X X X X X X X Extracts X X X X ..... 4) of Rule 3 of Cenvat Credit Rules - Sub-rule 4(b) of Cenvat Credit Rules permits utilisation of Cenvat credit for payment of duty of excise on any final product - This provision makes the position very clear that Cenvat credit cannot be used as a matter of right for payment of duty of excise, in case the assessee defaults in payment of duty before the cut off period under Rule 8(3A) of Central Excise Rules, 2002. The purpose of explanation that the expression ‘duty’ or ‘duty of excise’ shall also include the amount payable in terms of the Cenvat Credit Rules, 2004, would not amount to a permission for utilising the Cenvat credit for paying the excise duty - Rule 8(3A) is very specific when it provided that the entire duty should be paid w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e with interest for the delayed period. The petitioner utilised the eligible Cenvat credit of duty paid on the inputs and other eligible credits used in the manufacture of final products. However, the respondents failed to give credit to the duty paid through the eligible Cenvat credit and the same reflected in the accounts as non-payment. The second respondent verified the payments made by the petitioner and called upon to pay a sum of Rs. 53,62,822/- for the relevant period, failing which it was indicated that action would be taken for recovery of the amount under Section 11 of the Central Excise Act, 1944 read with Section 142 of the Customs Act, 1962. According to the petitioner, the entire duty amount was paid with interest, of course ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no Rubber and Plastics rep. by its Proprietor v. Customs and Central Excise, Chennai (Order dated 29 October, 2011 in W.P. No. 19909 of 2011) contended that the second respondent omitted to consider the explanation and that was the reason for demanding the entire amount without recognising the payment made by using Cenvat credit. According to the learned Senior Counsel, under similar circumstances, this Court directed the Customs Department to consider the applicability of explanation to Rule 8 (3A) of the Central Excise Rules, 2002. The department thereafter accepted the position. The petitioner is similarly situated and as such the payment made partially by using Cenvat credit should be recognised. 6. The learned Senior Standing Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... msp;If the assessee defaults in payment of duty beyond thirty days from the due date, as prescribed in sub-rule (1), then notwithstanding anything contained in said sub-rule (1) and sub-rule (4) of Rule 3 of CENVAT Credit Rules, 2004, the assessee shall, pay excise duty for each consignment at the time of removal, without utilizing the Cenvat credit till the date the assessee pays the outstanding amount including interest thereon; and in the event of any failure, it shall be deemed that such goods have been cleared without payment of duty and the consequences and penalties as provided in these rules shall follow. (4) The provisions of Section 11 of the Act shall be applicable for recovery of the duty as assessed under rule 6 and the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said order. The learned Judge directed the Settlement Commission to consider the effect of explanation appended to Rule 8(3A) of the Central Excise Rules, 2002 and to pass orders accordingly. 12. Rule 8(3A) categorically states that the assessee shall pay excise duty for each consignment at the time of removal, without utilising the Cenvat credit till the assessee pays the outstanding amount including interest thereon. The consequence for non-payment of excise duty is also indicated in the very same section as it provided that in case of failure to pay the amount, it shall be deemed that such goods have been cleared without payment of duty and the consequence of penalties as provided in the rules would follow. Rule 8(3A) does not perm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee is liable to pay the excise duty in accordance with the Central Excise Rules, 2002 with interest for the belated period and there is no provision for utilising the Cenvat credit for such belated payment. 16. The fact that the Assessing Authority took a different view in Techno Rubber and Plastics after remand would not stand in the way of this Court examining the statutory provisions and arriving at a finding with regard to the legislative intention. 17. The second respondent was fully correct in directing the petitioner to pay the entire duty amount with interest without utilising the Cenvat credit. So long as it is clear that the petitioner has not paid the entire duty amount with interest (without utilising the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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