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2013 (4) TMI 245 - AT - Central ExciseShort payment of duty due to wrong availment of Excess Cenvat Credit - Payment of duty in Cash - whether the Rule 8(3A) is applicable only for the non-payment of the total duty - held that:- It is true that word “default” is not found in sub-rule (1). However, merely because the said word is not found in sub-rule (1) that cannot be a justification to arrive at a conclusion that the provisions of sub-rule (3A) would not be attracted in spite of non-compliance of sub-rule (1). - It is also pertinent to note that there is no expression “short payment” or “less payment” used in sub-rule (1) and rightly so because question of considering whether there is short payment or less payment can arise only after there is default in complying with the obligation prescribed under sub-rule (1). Following the decision in Godrej Hershey Ltd. v. Commissioner of Central Excise [2010 (11) TMI 263 - CESTAT, NEW DELHI] held that the default mentioned under Rule 8(3A) of the Central Excise Rules is applicable in short payment of duty also. The assessee has contravened the provisions of Rule 8(1) and 8(3A) of the Central Excise Rules and excisable goods were removed from the factory in contravention of the Rule 8 and 8(3A) of the Central Excise Rules. - under Rule 8(3A) of the Central Excise Rules if assessee defaults in payment of duty beyond 30 days from due date the assessee shall pay excise duty for each consignment at the time of removal of goods without utilizing Cenvat credit till outstanding amount is paid along with interest and if this is not done then such goods shall be deemed to have been cleared without payment of duty and consequences and penalties as provided in these rules shall follow and accordingly - Demand of duty with interest confirmed - penalty reduced. - Decided against the assessee.
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