TMI Blog2009 (1) TMI 706X X X X Extracts X X X X X X X X Extracts X X X X ..... there was short payment of duty of Rs. 1,12,000/-. Same irregularity were found for May 2004, June 2004, August 2004 and December 2004 and in respect of these months, as against the duty payable of Rs. 3,72,610/-, the duty paid was only Rs. 1,21,876/- and as such the duty amounting to Rs. 2,50,734/- had been short paid. After issue of show cause notices, the Assistant Commissioner vide orders-in-original No. 85/05 dated 30-12-05 and 86/05 dated 27-12-05 confirmed the duty demands of Rs. 1,12,000/- and Rs. 2,50,734/- irrespectively under Rule 25(1) of Central Excise Act, 1944 alongwith interest on this duty under Rule 8(3) of Central Excise Rule readwith Section 11AB of the Central Excise Act and besides this, imposed penalty of Rs. 1,12,000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Appeal) s order setting aside the penalty is incorrect. He also emphasized that from the conduct of the Respondent, it is clear that this is a case of deliberate clearance of goods without payment of duty, as the Respondent had simply filed the ER-1 returns mentioning the duty payable and duty actually paid and other than this, there is no intimation to the Department that they have not discharged full duty liability for the months of April, May, June, August and December 2004 and that they discharged this duty liability only when the same was pointed out sometime in May 2005. In view of this, he pleaded that the Tribunal s judgments in the cases of Saurashtra Cement Ltd. v. CCE, Rajkot reported in 2008 (225) E.L.T. 395 (Tri.-Ahmd.) and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been disclosed in the returns and the liability not disputed. 3. I have carefully considered the submissions from both the sides. During the period of dispute, the Respondents were discharging duty liability on monthly basis, as per requirements of Rule 8 of the Central Excise Rules, according to which duty payable on the clearances of excisable goods during a month was required to be paid by the 5th of the next month. Second proviso to sub-rule 3A of Rule 8 provides that if the assessee fails to pay the duty by the due date, till such amount outstanding and interest are not made, it shall be deemed that the goods, in question, in respect of which the duty and interest are outstanding, have been cleared without payment of duty and where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able and duty paid and they have paid the duty when the Departmental Officers detected. Though it has been pleaded by the Respondent that because of financial hardship they could not discharge full duty liability for these months, there is no intention in this regard to the department and the Appellant simply filed the ER-1 returns for these months mentioning the duty payable and the duty paid and they paid the duty only when the non-payment of duty was detected by the officers sometimes in May 2005. Looking the peculiar circumstances of the case, I am of the view the Tribunal s judgment in the cases of Saurashtra Cement Ltd. v. CCE, Rajkot (supra) and CCE, Allahabad v. R.K. Cigarettes (P) Ltd. (supra) are not applicable. It has to be kept ..... X X X X Extracts X X X X X X X X Extracts X X X X
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