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TMI Blog2017 (9) TMI 290X X X X Extracts X X X X X X X X Extracts X X X X ..... le 25 - penalty set aside - appeal allowed - decided in favor of appellant. - Appeal No. E/89378/14 - A/89069/17/SMB - Dated:- 17-8-2017 - Shri Raju, Member ( Technical ) Shri Sunil Agrawal, Advocate for the appellant Shri Ajay Kumar, ADC (AR) for the respondent ORDER Per: Raju This appeal has been filed by appellant against imposition of penalty under Rule 25(1)(a) of Central Excise Rules 2002. 2. Ld. Counsel for the appellant argued that they had defaulted in payment of central excise duty. Consequently under provisions of Rule 8 (3A) they were required to pay duty consignment-wise and stop using the cenvat credit. Ld. Counsel pointed out that Hon'ble High Court of Gujarat in the case of Indsur Global Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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 consignment basis, I agree with the ld. AR that the Hon ble High Court judgment in case of Indsur Global Ltd. (supra), has clearly held that the duty during the default period is required to be paid on consignment basis. However, appellant have discharged the duty and whatever delay in payment of duty on the basis of date of clearance of the goods, they have paid interest as applicable. This is a case of delay in payment of duty and cannot be construed as case of evasion of duty, therefore, appellant is not liable for penalty under Rule 25 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 regarding the imposition of penalty under Rule 25, in the present case also it is not the case of non-levy/short-levy, non-payment/short-payment of duty by suppression or wilful misstatement, fraud and collusion or contravention of any provision of this act or rule made with intent to evade payment of duty, therefore, applying the ratio of this judgment appellant is not liable for penalty under Rule 25. As regard the judgment relied upon by the ld. AR in case of Shivam Pressings (supra), I find that the facts in that case was that the assessee did not pay duty on cons ..... X X X X Extracts X X X X X X X X Extracts X X X X
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