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TMI Blog2014 (9) TMI 734X X X X Extracts X X X X X X X X Extracts X X X X ..... nvat 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. violation of Rule 8(3A) of the Central Excise Rules, 2002 are clearly proved. Provisions Rule 8(3A) are self-contained requiring penal actions. Penalty is imposable - Decided against assessee. - Appeal No. E/1519/2012 - FINAL ORDER No.53402/2014 - Dated:- 21-8-2014 - Mr. Manmohan Singh, J. For the Appellant : Shri N. l. Jangir, Advocate For the Respondent : Shri Y.P. Batra, DR JUDGEMENT Per MANMOHAN SINGH: The present appeal has been filed by Reliance Stamping against the OIA No.17/CE/Appl/DLH-IV/2012 dt.01. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being duty for the period 7th March to 3rd April, 2010. The adjudicating authority vide impugned order confirmed the demand of ₹ 2,02,160/- and appropriated the same against the amount of ₹ 2,02,160/- debited against PLA entry No.04 dated 29.09.2010, besides ordering recovery of interest of ₹ 14,976/- and penalty of ₹ 2,02,160/- upon the appellants. 3. The appellants have also raised the issue that they have also made payment twice. This fact has not been appreciated by the Commissioner (Appeals). To know the exact position, the report from the Assistant Commissioner was called for by the CDR office and presented before the Bench. Their report dated 19.6.2014 is reproduced below for ready reference:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und in NSDL site and also not available with the party. However, an amount of ₹ 3,43,433/- (Rs.3,34,837/- Duty and Interest ₹ 8,596/-) was found credited in their PLA A/c of September, 2010 for which challan was deposited on 24.09.2010 and 29.09.2010 resepctively and challan copies are available. The duty amount of ₹ 3,34,837/- (for Feb-2010 of ₹ 1,32,654/- and March-2010 of ₹ 2,02,183/-) with interest ₹ 8,596/- was debited from their PLA A/c in September, 2010, which was earlier debited from their Cenvat Account. Moreover, the party had again taken credit of ₹ 3,43,433/- in the month of October, 2010 in their PLA A/c for which duty deposited challan is not available/produced by the party. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be appropriated towards total amount of ₹ 3,43,433/- debited by PLA entry 04 dated 29.9.2010. Equivalent penalty of ₹ 2,02,160/- was also imposed. 5. Appellant s contention that duty has been paid twice does not have strong basis as initial duty was paid through Cenvat Credit Account and letter was paid in cash through PLA. Once duty has been paid in PLA, of course, they are eligible for re-credit of earlier paid of ₹ 2,02,160/-. This fact has also been reflected in the verification report submitted by the original adjudicating authority. Appellants contention that no penalty is leviabsle because they have paid duty before issue of show cause notice is to be appreciated as per discussion below:- Rule 8 (3A) clearly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the assessee shall pay excise duty for each consignment at the time of removal, without utilizing the Cenvat credit till the assessee pays the outstading 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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