2017 (8) TMI 1100

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... Conveyors Versus Commissioner of Central Excise, Kalyan III [2016 (8) TMI 238 - CESTAT MUMBAI] - penalty set aside - appeal allowed - decided in favor of appellant.
Mr. Ramesh Nair, Member(Judicial) Shri. Anand Kulkarni, Advocate for the Appellants Shri. A.B. Kulgod, Asstt. Commissioner(A.R.) for the Respondent ORDER The fact of the case is that the appellant have defaulted quarterly payment of duty. They have paid the duty after 3 months from the due date along with interest. The adjudicating authority imposed penalty of ₹ 1,50,000/- under rule 25(1)(a) of Central Excise Rules, 2002. Ld. Commissioner (Appeals) also upheld the order in original, therefore the appellant is before me. 2. Shri Anand Kulkarni Ld. Counsel appeari .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... g the month of April and May, 2006. The penalty was imposed on the ground that the appellant during April and May, 2006 cleared the goods without paying the duty on consignment basis. Duty was paid for these period on monthly basis and debited the Cenvat credit account. Fact is not under dispute that the duty for this period has been paid along with interest. As regard the utilization of Cenvat credit, issue squarely covered by the Hon'ble Gujarat High Court judgment in case of Indsur Global Ltd. (supra), wherein it was held that the assessee is permitted to utilize Cenvat credit. In view of this judgment, utilization of Cenvat credit for payment of duty during the default period is not illegal. As regard the payment of duty on consignm .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... the duty so determined. For the purpose of invoking Section 11AC of the Act, the condition precedent is that the duty has not been levied, or paid or short-levied or short-paid or the refund is erroneously granted by reasons of fraud, collusion or any wilful misstatement or suppression of facts. If these ingredients are not present, penalty under Section 11AC cannot be levied. Since Rule 25 can be invoked subject to the provisions of Section 11AC of the Act, as a natural corollary, the ingredients mentioned in Section 11AC are also required to be considered while determining the question of levying of penalty under Rule 25 of the Central Excise Rules. As per the interpretation drawn by the Hon'ble High Court in the above judgment reg .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X