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TMI Blog2019 (5) TMI 471X X X X Extracts X X X X X X X X Extracts X X X X ..... as been filed by the revenue under Section 35G of the Central Excise Act, 1944 (in short "the Act") against the order dated 20.7.2016 (Annexure A-5) passed by the Customs, Excise and Service Tax Appellate Tribunal, Chandigarh Bench, Chandigarh, claiming the following substantial questions of law:- i) Whether the CESTAT is justified in reducing the penalty amount to 25% of Rs. 1,63,00,000/- as the Party had committed serious fraud of taking Credit entries in their PLA without actually depositing the amount in the Govt. treasury, particularly when no such provision existed in the Central Excise Law during the relevant period? ii) Whether the CESTAT is justified in allowing utilization of Cenvat Credit during the period from 18.01.2001 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... account. The Party took credit in their PLA account without actually depositing of the same through TR-6 challan. Thus, the Party instead of paying defaulted amount manipulated their account current and by showing that the default amount had been paid, restored the facility of fortnightly payment of duty on their own w.e.f. 18.1.2002 and started paying duty from the cenvat account. According to the revenue, during the period from 18.1.2002 to 8.3.2002, the Party had wrongly utilized cenvat credit of Rs. 1,69,38,241/- from RG 23A Part II account towards payment of duty on clearance of their excisable goods instead paying duty on consignments basis in terms of the order dated 24.9.2001. Therefore, such clearance of excisable goods utilizing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is confirmed from them under Section 11A(1) of the Central Excise Act, 1944 by invoking the proviso to the Section and the amount of Rs. 1,63,00,000/- already deposited by M/s Dhillon Kool Drinks & Beverages Ltd. towards the amount of Central Excise duty is appropriated as rightly paid under Section 11A(1) of the Act, ibid; (ii) The demand of duty amounting to Rs. 1,69,38,241/- paid through Cenvat Credit is confirmed and should be recovered from M/s Dhillon Kool Drinks & Beverages Ltd. from Account current under Section 11A(1) of the Central Excise Act, 1944 by invoking the proviso to the Section; (iii) Penalty of Rs. 3,32,38,241/- is imposed upon them under Section 11AC of the Central Excise Act, 1944; (iv) Personal penalty of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g aside the demand of Rs. 1,69,38,241/- and the penalty. Further, the Tribunal reduced the penalty to 25% of Rs. 1,63,00,000/- and confirmed the personal penalty of Rs. 50,000/- each upon S/Shri Deepak Rai Walia and Praveen Rana. Hence, the present appeals by the revenue. 5. We have heard learned counsel for the parties. 6. The Deputy Commissioner, Central Excise Division, Sonepat vide order dated 24.9.2001 passed in terms of Rule 8 of the Rules had withdrawn the facility for fortnightly payment of duty and payment through RG 23A Part II for a period of two months or till the deposit of defaulted amount whichever was later. The Party had paid whole of the defaulted amount along with interest on 17.10.2001. Since the Party had made the w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition of nominal penalty upon them would meet the ends of justice and accordingly imposed the penalty of Rs. 50,000/- each on both the officials. The relevant findings recorded by the Tribunal read thus:- "6. On careful consideration of the submissions made by both sides, we find that vide order dated 24.9.2001 in terms of Rule 8 of Central Excise Rules, 2001 the facility for fortnightly payment of duty and payment of duty for a period of two months or till the deposit of defaulted amount whichever was later. We have seen that the appellant has paid whole of the defaulted amount along with interest on 17.10.2001. These facts are evidence from RT-12 returns and the same has not been disputed by the adjudicating authority. In that circumst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellants. The sole contention of the appellant is that they were receiving the communication from their head office with regard to the payment of duty through TR-6 challan telephonically wrongly and therefore, they have taken the credit i.e. due to mistake of the concerned official. In that circumstance, the penalty is not imposable. We find that although there may be mistake of the appellants but the appellants cannot take the benefit of the same as they have taken the credit in the PLA without making payment. In the circumstances, we are of the view that the penalties are imposable on the appellants. Further, we find that the whole of the amount in dispute was paid along with interest before issuance of show cause notice. In the circumstan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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