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TMI Blog2017 (12) TMI 326X X X X Extracts X X X X X X X X Extracts X X X X ..... -appeal no. RBT/86/2011 dated 14th March 2011 of Commissioner of Central Excise (Appeals), Mumbai Zone I which has upheld the order of the lower authority. 2. Appellant is a manufacturer of hydrochloric acid and red oxide falling under chapter 28 of the Schedule to Central Excise Tariff Act, 1985 and, admittedly, during May September 2007 had not complied with the deadlines in rule 8 of Central Excise Rules, 2002 for payment of duty. The rules stipulate that the duty liability for the previous month is to be deposited by the 5th of the following month and, in the event of failure to pay duty by the stipulated date, at the scheduled rate was to be deposited along with outstanding amount and, in the event of default beyond 30 days from the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner of Central Excise [2017 (349) ELT 150 (Tri.-Del.)]. It is also the contention of the counsel for the appellant that Hon'ble High Court of Gujarat in Indsur Global Ltd v. Union of India [2014 (310) ELT 833 (Guj.)] had declared rule 8(3A) of Central Excise Rules 2002 to be ultra vires. 4. Learned Authorised Representative relies on the decision of the Tribunal in Shivam Pressings v. Commissioner of Central Excise, Pune I [2015 (326) ELT 351 (Tri.-Mumbai)] and upon Meghdoor Gramoudyog Sewa Sansthan v. Commissioner of Central Excise, Noida [2014 (312) ELT 699 (Tri.-Del.)] to contend that, for contraventions specified in rule 25 of the Central Excise Rules, 2002, mere contravention alone is sufficient for owing strict liability requi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h day of the following month, if the duty is paid electronically through internet banking and by the 5th day of the following month, in any other case : xxxxx (4) If the assessee fails to pay the amount of duty by due date, he shall be liable to pay the outstanding amount along with interest at the rate specified by the Central Government vide notification under section 11AA of the Act on the outstanding amount, for the period starting with the first day after due date till the date of actual payment of the outstanding amount. (5) If the assessee fails to pay the duty declared as payable by him in the return within a period of one month from the due date, then the assessee is liable to pay the penalty at the rate of one per cent on su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iability that transaction had been received subsequently. The proposal in the show cause notice show cause notice for recovery of the amount paid through debit in CENVAT credit has been rendered infructuous as also the appropriateness of the said amount in the order of the original authority. Therefore, all that remains insofar this appeal is concerned are the penalties imposed under rule 15(2) and rule 25 of the CENVAT Credit Rules, 2004 to which reference may be made here. 9. Rule 15(2) CENVAT Credit Rules, 2004. (2) In a case, where the CENVAT credit in respect of input or capital goods or input services has been taken or utilised wrongly by reason of fraud, collusion or any wilful mis-statement or suppression of facts, or contraventi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur attention to Section 11 of the Central Excise Act, 1944 (for short 'the Act'). Section 11AC of the Act reads as under: Penalty for short-levy or non-levy of duty in certain cases : Where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reasons of fraud, collusion or any willful mis-statement or suppression of facts, or contravention of any of the provisions of the Act or of the rules made thereunder with intent to evade payment of duty, the person who is liable to pay duty as determined under sub-section (2) of section 11a, shall also be liable to pay a penalty equal to the duty so determined. Provided that where such duty as determined under sub-section (2) of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered dealer, contravenes any of the provisions of these rules or the notifications issued under these rules with intent to evade payment of duty, he is liable to pay the penalty in terms of rule 25 of the rules. A bare perusal of this Rule would suggest that evasion of payment of duty is not sufficient to impose penalty on a producer or manufacturer. There should be an element of intention to evade payment of duty. Unless the authorities come to a definite conclusion that there was an intention to evade the payment of duty, penalty cannot be imposed. 6. In the present case, there is a finding of the Tribunal that the circumstances were beyond the control of the respondent-company as the matter was pending before BIFR, and as such, the amo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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