TMI Blog2014 (8) TMI 815X X X X Extracts X X X X X X X X Extracts X X X X ..... gly short pay ₹ 7745/- to potentially face such consequences. Further it is not a case where goods were not duly accounted for - Prima facie, the show cause notice in this case was issued (on 8.12.2011) more than one year after the default was made good - default had already been made good by the Appellants much before the show cause notice was issued. Thus, prima facie, the contents of this para are harmoniously applicable to the present case - stay granted. - Appeal No. 57809/2013 - STAY ORDER NO._52070 /2014 - Dated:- 9-6-2014 - Mr. G. Raghuram and Mr. R.K. Singh, JJ. For the Appellant : Shri K.K. Anand Ms. Surbhi Sinha, Advocate For the Respondent : Shri Yespal Sharma, DR ORDER Per R.K. Singh: This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udhiana which is against the applicants; (b) waive pre-deposit of penalty of ₹ 2,06,33,144/- and stay their recovery till the disposal of the appeal; (c) grant a personal hearing; and (d) pass such other order or orders as may be deemed fit and proper in the facts and circumstances of the case. 3. Briefly stated, the Appellants are engaged in the manufacture of castings falling under Chapter 73 of the Central Excise Tariff Act. During the course of audit of records of the Appellants by the A.G. (Audit) Punjab, Chandigarh, it was observed that the total Central Excise Duty liability payable for the month of December 2007 was ₹ 29,05,658/- (Rs. 28,21,029/- (Duty)+Rs. 56417/- (Edu.Cess) + &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty for each consignment at the time of removal, without utilizing the CENVAT Credit till the date the assessee pays the outstanding amount including interest thereon; and in the event of any failure, it shall be deemed that such goods have been cleared without payment of duty and the consequences and penalties as provided in these Rules shall follow. The Commissioner confirmed the demand of ₹ 20633144/- to be paid without utilization of Cenvat Credit under Section 11A of Central Excise Act read with Rule 8 (3A) of Central Excise Rules 2002, alongwith interest payable thereon and imposed penalty of ₹ 20633144/- under Rule 25 Central Excise Rules read with Section 11AC of Central Excise Act. 5. The Appellants have contended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly short pay ₹ 7745/- to potentially face such consequences. Further it is not a case where goods were not duly accounted for. 9. CESTAT in the case of M/s. J.B. Mangharam Foods Pvt. Vs. 2012 (285) ELT 394 (Tri.-Del.) dealt with a similar case. Para 7 of this judgement, which had taken note of the CESTAT judgement in case of M/s. Godrej Hershey Ltd. Vs. CCE, Bhopal 2011 (263) ELT 663 (Tri.-Del.) relied upon by the Adjudicating Authority in the present case, is approvingly quoted below:- We have considered the rival submissions and gone through the judgments referred to by respective parties. It is undisputed that the appellant paid the excise duty within the grace period of 30 days as provided under the rules. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra are eminently applicable to the present case rendering further detailed discussion needless at the stage of considering stay application. 10. Prima facie, the show cause notice in this case was issued (on 8.12.2011) more than one year after the default was made good. In the Order-In-Original the adjudicating authority justifies invocation of extended period is these words:- 4.18 Since the Noticee has suppressed the material facts from the knowledge of the department by non-discharging their full duty liability for the month of December 2007 with the intention to evade Central Excise Duty, the Noticee is liable for penal action under the provision of Rule 25(1) (a) of the Rules read with Section 11AC of Act. Thus th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stored. So payments made through Cenvat credit during the defaulting period also becomes good payment once the default is made good by paying the defaulted amount along with interest. Interest on deemed non-payment of duty on clearances during the period of default is a separate consequence but not critical in deciding whether the assessees continues to be in default. As is evident from the facts of the present case, the default had already been made good by the Appellants much before the show cause notice was issued. Thus, prima facie, the contents of this para are harmoniously applicable to the present case. 12. In view of the foregoing discussion, the stay petition is allowed, the condition of pre-deposit of duty, interest penal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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