9911796707
TMI Blog2004 (4) TMI 137X X X X Extracts X X X X X X X X Extracts X X X X ..... tatement etc. There being no such factors available in the instant case, inasmuch as duty payment from credit account having been reflected in the monthly return, the said sections cannot be invoked. It is seen that apart from invoking Section 11AC, penalty was also Imposed under Rule 173Q. Rule 173Q(1)(e) provides that in the event of failure to pay duty on consignment wise basis by debiting through account current, it will be deemed as if such goods have been cleared without payment of duty and consequences and penalties as provided in the Central Excise Rules shall follow. As such, though the duty was paid by debiting through Cenvat account, a situation has been created in the said rule by deeming fiction of law as if the clearances have been effected without payment of duty. If that be so, interest and penalty has to be confirmed. We order accordingly. Thus, we reduce the penalty to Rs. 1 Lakh. But for the above modification in quantum of penalty, the appeal is otherwise rejected. - Smt. Archana Wadhwa, Member (J) and Shri Moheb Ali M., Member (T) [Order per : Archana Wadhwa, Member (J)]. - The dispute involved in the present appeal is as to whether an assessee who has been d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Learned Advocate are strongly opposed by Learned DR appearing for the revenue. The issue, having been settled by various precedent decisions of the Tribunal, the prayer is to follow the same. 6.Considered the submissions made by both the sides. As per facts on record, the appellant, who was availing the facility to pay duty on fortnightly basis, was directed by his jurisdictional Deputy Commissioner, vide his letter dated 5-9-2000, to pay duty on consignment wise basis as on account of default by the appellant to discharge his duty liability by due date, the facility is withdrawn for a period of two months. During this period of two months, the appellant paid the duty on consignment wise basis but by debiting Cenvat Credit account instead of paying the same out of PLA or by cash. The Revenue's stand is that the rule in question requires the assessee to pay duty out of current account i.e. PLA and not out of credit account. 7.For better appreciation, we reproduce below the relevant provisions of Rule 173G(1)(e), as the existed during the period in question : - (e) If the manufacturer defaults on account of any of the following reasons, namely :- (i) Full payment of any one inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accepted. 9.For the similar reason, reliance on Para 14 of Karnataka High Court decision in the case of Modern Mills Ltd. referred supra is of no avail to the appellant as the same was delivered in altogether different context. The issue before their Lordships in that case was in respect of the credit earned on minor oil in terms of an existing notification and the utilisation of the same after the withdrawal of the notification. Similarly, the definition of account current showing that the same refers to the statement showing the transactions between two parties together with interest or a record of transactions between two parties, does not advance the appellant's contention that the current account would also cover Cenvat Credit account, inasmuch as discussed in previous paragraphs, the two terms have been distinctly used as referring to two different accounts. If current account is held to be wide enough to cover the Cenvat Credit account, then there was no need to use the expression Cenvat Credit separately. The expression has to be interpreted in the backdrop of its understanding in the particular field or branch of law in which it is issued. Bombay II Commissionarate Trade N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R.L.T. 558 (CESTAT - Chen.) Inasmuch as the issue also stands decided by the above decisions and in view of our discussions in the preceedings paragraph, we find no justifiable reasons to take a different view. 12.At this stage we may also take note of basis manual of departmental instructions issued vide F No. 202/93/81-CX. 6, dated 17-6-1982 appearing at page 150 as Paras 96 to 97. The heading of the said paragraphs is 'Application for account current' laying down as to how the Personal Ledger Account is to be opened and how the same is to be used. This also reflects upon the understanding of the expression 'account current' as 'referring to only PLA in the Central Excise matters. Similarly Circular No. 571/8/2001-CX, dated 22-2-2001 issued by the Board, states in Para 5 that forfeiture of instalment payments should be strictly enforced in terms of the provisions of Rules 49 (1)(e) and further states that during such period, the assessee can discharge duty consignment wise only from account current. It is seen that the emphasis is on the term 'only' thus excluding the use of credit account during this period. 13.In view of the foregoing, we are of the firm opinion that duty was t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
