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TMI Blog2014 (2) TMI 164X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Rs.16.70 lakhs, revenues objection was to the effect that Rs.16.70 lakhs stand deposited from the Cenvat credit whereas the same was required to be deposited from cash, is not found favour with inasmuch as there are decisions of the Division Benches in the case of Solar Chemferts Pvt. Ltd. and Baba Vishkarma Engg. Co (P) Ltd. wherein it has been held that deposit through Cenvat credit during the period of default would only result in confirmation of interest to the Revenue as that is the only loss to the Revenue. As such, we accept the deposit made through Cenvat credit as the deposits towards duty and held that entire duty stand paid by the appellant. 4. Further, we find that admittedly violation of provisions of Rule 8 attract penal provisions in terms of Rule 27 of the Central Excise Rules, in view of the order of Hon'ble Gujarat High Court in the case of CCE vs. Saurashtra Cement Ltd. reported as [2010 (260) ELT 71 (Guj)]. We accordingly direct the applicant to deposit an amount of Rs. 5000/- (Rupees Five Thousands only) towards penalty within the said period, subject to which the penalty imposed upon the applicant would be dispensed with and its recovery stayed. 5. Matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayment in their monthly ER-1 returns but the same was not actually paid by them. Further security of ER-1 returns and subsequent enquiry revealed that the notcee has enclosed bogus counterfoils of the cheques having stamp of Punjab National Bank branch. However, the fact is that the said cheques were never presented to the Bank. Thus, the said acts of notice despite having full knowledge that they were not having sufficient funds in their Bank account appear to be deliberate and also to mislead and deceive the department." Default in payment of central excise duty in cash a through account current. 10. It is seen from SCN that M/s BAL has defaulted in payment of duty due for the months beginning from March 2008, April 2008, May 2008, June 2008, July 2008, August 2008, Sept 2008, Oct 2008, Nov 2008, Dec 2008. In case of default, provision of Rule 8(3A) of Central Excise Rules 2002 are applicable once default exceeds stipulate time limit of 30 days. Table B given below clearly brings out position:- Table B Month Amt. of duty payable Amt. of duty paid form Cenvat Credit Amt. of duty paid from PLA Date of payment of duty from PLA Amt. defaulted Mar'08 1328 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bank 7. 07.08.08 079930 92700.00 Cheques returned due to insufficient fund 8. 09.08.08 079931 46350.00 9. 12.08.08 079932 257500.00 10. 14.08.08 079933 206000.00 11. 19.08.08 079935 92700.00 12. 19.08.08 079936 103000.00 13. 22.08.08 079937 206000.00 14. 26.08.08 079938 103000.00 15. 28.08.08 079939 206000.00 16. Sept'08 04.09.08 079940 206000.00 08.09.08 Cheques returned due to insufficient fund 17. 09.09.08 079941 206000.00 20.09.08 18. 12.09.08 079944 206000.00 15.09.08 19. 18.09.08 079945 206000.00 Cheques not presented to the Bank 20. 23.09.08 079946 309000.00 21. 27.09.08 079947 309000.00 22. Oct'08 11.10.08 079949 206000.00 Cheques not presented to the Bank 23. 13.10.08 079950 206000.00 24. 18.10.08 079951 206000.00 25. 22.10.08 079952 206000.00 26. 25.10.08 Cheque dated: 25.10.08 of IDBI Bank 206000.00 27. Nov'08 01.11.08 009654 51500.00 Cheques not presented to the Bank 28. 08.11.08 009659 103000.00 29. 10.11.08 009660 206000.00 30. 14.11.08 009662 206000.00 31. 21.11.08 009666 206000.00 05.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise duty for each consignment at the time of removal, without utilizing 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 permit the assessee to pay the excise duty by using the Cenvat credit. The provision retrained the assessee from using Cenvat credit till the entire outstanding amount including interest is paid. The explanation is only for the purpose of making the position clear." 16. In view of above, I am of the firm view that deposited amount in Cenvat credit is required to paid through cash or current account along with leviable interest. Issue regarding penalty under rule 25 or rule 27 17. It is observed from draft order that penalty under rule 27 has been proposed. However, as facts stated above, this is not simple question of default where duty is later paid from current account. Here is case where amount of duty ..... X X X X Extracts X X X X X X X X Extracts X X X X
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