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TMI Blog2014 (2) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... hat:- expression "on the date of such removal" is referable to the rate applicable to such goods and it cannot be understood to mean that the duty should be paid at the time of removal in terms of substituted provisions. The expression "on the date of such removal" stands deleted in the new Sub Rule (4) to Rule 3 of Cenvat Credit Rules,2002 - assessee has paid the duty at the end of the month, i.e., much prior to the 5th day of the following month or in case where the removal had taken place in March before 31st March of the relevant year. In such circumstances, it cannot be said that the there has been delay in payment of duty so as to invoke Section 11AB of the Central Excise Act,1944. Even though the Tribunal has proceeded on the basis t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, the assessee preferred appeal before the Commissioner (Appeals). The Commissioner (Appeals) held that the duty liability having been paid prior to the issuance of show cause notice, the question of imposing penalty or demanding interest does not arise. As against this order, the Department preferred appeal to the Tribunal and the Tribunal dismissed the appeal on the ground that there is no enabling provision in the Statute for recovering interest. 4. Challenging the same, the assessee has preferred this appeal, which has been admitted on the following questions of law: 1. Whether in the facts and circumstances of the case, the Tribunal is right in law in holding that there is no provision in the statute for enabling the recovery of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f show cause notice and therefore, the penalty and interest cannot be demanded when the facts of the instant case are totally different. 8. The contention of the Revenue is that as per Rule 3(4) of the Cenvat Credit Rules, 2002 when inputs or capital goods on which CENVAT credit was taken, are removed as such from the factory, the manufacturer of the final products shall pay an amount equal to the credit availed in respect of such inputs or capital goods and such removal shall be made under the cover of an invoice referred to in Rule 7. Therefore, it is contended that the Tribunal erroneously held that there was no provision for payment of interest, especially, when there is a specific provision contained in Section 11AB of the Act. 9. Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after being partially processed, or such capital goods are removed as such: Provided that while paying duty, the CENVAT credit shall be utilized only to the extent such credit is available on the fifteenth day of a month for payment of duty relating to the first fortnight of the month, and the last day of a month for payment of duty relating to the second fortnight of the month or in case of a manufacturer availing exemption by a Notification based on value of clearances in a financial year, for payment of duty relating to the entire month. (4) When inputs or capital goods, on which CENVAT credit has been taken, are removed as such from the factory, the manufacturer of the final products shall pay an amount equal to the duty of excise whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time of removal in terms of substituted provisions. The expression "on the date of such removal" stands deleted in the new Sub Rule (4) to Rule 3 of Cenvat Credit Rules,2002 as cited supra. 13. Rule 8 of the Cenvat Credit Rules, 2002 deals with a manner of payment of duty and it states that (1) The duty on the goods removed from the factory or the warehouse during a month shall be paid by the 5th day of the following month. In terms of first proviso to Rule 8, in case of goods removed during the month of March, the duty shall be paid by the 31st day of March. For the purpose of this case, second proviso to Rule 8 would not be of relevance. Thus, in terms of Rule 8(1) r/w Sub Rule (4) to Rule 3 of the Cenvat Credit Rules, 2002, the duty sh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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