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2013 (4) TMI 382 - AT - Central ExciseNon discharge of the duty liability for the month of December 2007 to February 2008 - default as per Rule 8(3A) of the Central Excise Rules, 2002 - contested by appellant No.1 that penalty under Rule 25 of the Central Excise Rules not to be imposed - Held that:- The appellant has paid the entire defaulted amount in cash along with interest. Therefore no penalty can be imposed upon the appellant No.1 under Rule 25 of the Central Excise Rules, 2002. The only penalty which could have been invoked is under Rule 27 of the Central Excise Rules because appellant No.1 has contravened the provisions of Central Excise Rules for making the payments from cenvat credit when they were required to make the payments in cash for each consignment. It is seen from the show cause notice dated 25.11.10 that no penalty under Rule 27 of the Central Excise Rules has been proposed against appellant No.1. Accordingly, the penalties that Rs.9,96,740/- imposed against appellant No.1 is required to be set aside. So far as imposition of penalties upon appellant No.2 and 3 are concerned, it is seen that the goods were cleared on payment of duty but instead of making the payment in cash the payments were made from cenvat credit. Therefore the goods were cleared on payment of duty and the same was duly reflected in the returns filed by the appellant No.1. Thus it cannot be held that there was any malafide intention on the part of appellant No.2 and 3 to evade payment of duty. The only default in this case was utilising cenvat credit and there is an interest loss to the Revenue from the date of utilisation of cenvat credit till the demand of duty in cash which has been made good by making the payments in cash - all the three appeals filed by the appellants are allowed.
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