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TMI Blog2014 (12) TMI 906X X X X Extracts X X X X X X X X Extracts X X X X ..... be a default of Rule 8(3A) of the Central Excise Rules, 2002 then every short payment paid on being pointed out by department, or suo-moto by an assessee, will be a case of default. At the same time any valuation/ classification dispute detected by department and upheld by any appellate authority up to Supreme Court will also be a case of default of Rule 8(3A). Such a situation may arise after years of litigation also and may lead to a position of chaos rather than harmony and certainity in taxation matters. We are, therefore, of the opinion that default in payment of duty mentioned in Rule 8 (3A) will be non payment of duty as assessed by an assessee. However, there could be situations where an assessee deliberately calculates less duty li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and appeal have been filed by the appellant with respect to OIO No. 19/Demand/2012 dated 18.01.2013 passed by the Commissioner of Central Excise, Customs Service Tax, Surat. Under this OIO Adjudicating authority has confirmed a demand of ₹ 4,57,25,70,950/- against the appellant, along with interest, and also imposed equivalent penalty under Rule 25 of the Central Excise Rules, 2002 read with Section 11AC of the Central Excise Act, 1944. 2. Shri V.K. Jain (Advocate) and Ms. Dimple Gohil (Advocate) appeared on behalf of the appellant. Learned advocate Shri V.K. Jain argued that the demand has been raised for short payment of ₹ 4,798/- and ₹ 1,360/- (Total ₹ 6,158/-) respectively for the month of March and April 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) when appellant is not aware of the short payments:- (a) Meenakshi Associates vs. CCE - [2012-TIOL-587-CESTAT-DEL] (b) Alok Enterprises vs. CCE, Mumbai -[2014-TIOL-2008-CESTAT-MUM] (c) T.B. Mangharam Foods Private Limited vs. CCE, Indore - [2012 (285) ELT 384 (Tri. Del.)] 2.1 Learned advocate also made the bench go through Rule 8(3A) of the Central Excise Rules, 2002 and emphasised that this Rule does not talk of duty payable but talk of duty which should mean duty as assessed by an assessee. It was his case that there was no default in the payment of duty as assessed by appellant. That duty short paid due to a calculation error was only to the extent of ₹ 6,158/- and cannot be considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the present case are similar to the facts of the case involved in Godrej Hushey Limited vs. CCE, Bhopal (supra), therefore, demands have been correctly confirmed against the appellant. 4. Heard both sides and perused the case records. The issue involved in the present proceedings is whether due to a calculation error, amounting to a short payment of ₹ 6,158/-, appellant can be slapped with a demand of approximately ₹ 457 Crores, along with interest and an equivalent amount of penalty. According to Revenue short payment of ₹ 6,158/- is a case of default under Rule 8(3A) as upheld by CESTAT Delhi in the case of Godrej Hershey Limited vs. CCE, Bhopal (supra). 4.1 Rule 8(3A) of the Central Excise Rules, 2002 is relevan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id or escaped the Self Assessment, necessary action should be taken to recover the duty in accordance with Section 11A of the Act. Similarly in case of excess payment by the assessee, they can file the refund claim. The relevant date for such refund should be continued to be computed as provided in Section 11B of the Act. 4.3 From the above legal provisions it is observed that field formations are required to take recovery action under Section 11A of the Central Excise Act, 1944 if there is any calculation error and rate of duty difference. If a short calculation of duty is attributed to be a default of Rule 8(3A) of the Central Excise Rules, 2002 then every short payment paid on being pointed out by department, or suo-moto by an assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, in the case of Baman and Berry Bearing Private Limited vs. UOI (supra), will be applicable even if the act of the appellant is considered as default of Rule 8(3A) because law does not care for trifles (Lex non curat de minimis). 4.4 Learned AR has placed reliance on the judgment of CESTAT Delhi in the case of Godrej Hershey Limited vs. CCE (supra) wherein it has been held that any omission on the part of an assessee if leads to short payment will be a case of default. We respectfully differ with the views expressed by CESTAT Delhi as this interpretation will lead to chaos and will not be implementable as narrated in Para 4.3 above. In our opinion the default of Rule 8(3A) will take place only for non payment of duty as assessed or by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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