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2012 (11) TMI 301 - CESTAT MUMBAIForfeiture of monthly payment facility - Cenvat Credit account partly for payment of duties- Held that:- In the order dated 15/10/2009 passed by this Tribunal there is no reference to forfeiture of the facility under Rule 8 (3A) ordered by the Assistant Commissioner, which implies that this issue was not challenged before the Tribunal and therefore, the forfeiture of monthly payment facility and cenvat credit availment attained finality. What was decided by this Tribunal was only the rate of interest liable to be paid and the amount of penalty imposed. Therefore, the appellant cannot agitate now the forfeiture of facility of paying duty using Cenvat Account under Rule 8 (3A). As during the subsequent period, when the provisions relating forfeiture was operational, the appellant could not have utilized the Cenvat Credit account for payment of duty at all. In that view, the appellant was wrong in utilizing the Cenvat credit amount for payment of duty and this amount has to be made good by the appellant by payment in cash/PLA. In as much as the appellant has not paid this amount and there is a delay in payment, the appellant is also liable to pay interest thereon under Section 11AB and the appellant has to pay interest on the defaulted amount in PLA account. As regards the penalty of Rs.2 lakhs imposed u/r 25 can be imposed when the goods are held liable to confiscation. As neither in the show-cause notice nor in the orders passed by the lower authority any finding that the goods are liable to confiscation and consequently without giving a positive finding in this regard, penalty could not have been imposed. Further maximum penalty imposable under the said rule is equal to the duty involved or Rs.2000/- whichever is higher. Therefore, imposition of penalty of Rs.2 lakhs which is far in excess of the duty involved is bad in law and cannot be sustained. Accordingly the same is set aside.
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