9911796707
TMI Blog2004 (3) TMI 187X X X X Extracts X X X X X X X X Extracts X X X X ..... ulted in payment of duty instalment for 3rd time in a financial year, the Deputy Commissioner, under order dated 28-9-2001, withdrew the facility of fortnightly payment of duty and the respondents were ordered to pay duty from account-current on consignment basis; that it was also, further, ordered that in the event of failure to make payment in the said manner, it would be deemed as if such clearance of goods had been made without payment of duty and, consequently, penalties would follow; that the said order was effective from the date of communication i.e. 15-10-2001; that, however, the scrutiny of monthly returns for the months of October, 2001 to December, 2001 reveals that the respondents had paid duty by utilising Cenvat credit; the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder their letter dated 20-3-2004 mentioning therein that a plain reading of order dated 28-9-2001 reveals that the said order has two portions - first the fortnightly duty payment facility of the respondents was forfeited and the second, if they pay all dues and also discharge duty on consignment basis from account-current at least for a period of two months the facility of fortnightly payment shall be restored; that the legislature has used the expression 'facility' in Rule 8(2), which clearly implies that the fortnightly duty payment scheme as the optional one; that it is totally incorrect and illegal to direct them to pay duty from account-current only; that the said condition of payment of duty from account-current at least for a perio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of fortnightly payment and directed them to pay the duty from account-current on consignment basis. It has also not been disputed by them that they had cleared the goods by debiting the duty from Cenvat credit instead of discharging the duty from account-current. Rule 8 of Central Excise Rules, 2001 provided that if the assessee defaults in payment of instalments for the third time in a financial year in succession or otherwise, the assessee shall forfeit the facility to pay the dues in instalment under this Rule for a period of two months, starting from the date of communication of the order passed by the Assistant/Deputy Commissioner in this regard or till such date on which the dues are paid, whichever is later and during this period, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oss-objection filed by the respondents, which is dismissed. 5. Sub-rule (4) of Rule 8 clearly mentions that in the event of any failure, it shall be deemed that the goods have been cleared without payment of duty consequence and penalties, as provided in this Rule, shall follow. Once the goods are deemed to have been cleared without payment of duty as the respondents discharge their duty liability by debiting the Cenvat credit amount and not through the account-current, the payment of duty has to be made from them. The demand of duty can be made only under the provisions of Section 11A(1) of the Central Excise Act, which empowers a proper officer to issue a show cause notice if any duty has not been levied or paid or has been short-levied ..... X X X X Extracts X X X X X X X X Extracts X X X X
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