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2015 (9) TMI 934 - AT - Central ExciseWaiver of pre deposit - restriction on utilisation of Cenvat credit due to delay in payment of duty - violation of provisions of Rule 8(A) of Central Excise Rules, 2002 - Imposition of penalty - Difference of opinion - Majority order - Held that:- Language of Rule 8 (3A), it is clear that it is non-obstinate provision which operates notwithstanding anything contained in sub-Rule (1) and sub-Rule (4) of Rule 3 of Cenvat Credit Rules, 2004 and, hence, the provisions of Rule 8 (3A) of Central Excise Rules, 2002 would have over-writing effect over the provisions of Cenvat Credit Rules, 2004. In this judgment, it was further observed that the intention of sub-Rule (3A) of Rule 8 is to punish an assessee defaulting in discharge of monthly duty liability beyond the period of 30 days from the due date by denying the utilisation of Cenvat credit and making him pay the duty consignmentwise, as in most of such cases, while the defaulting assessee has not paid duty on the goods cleared during a particular month, on the basis of the invoices issued by him his customers would have taken the Cenvat credit resulting in double loss to the Government. - appellant would be required to pay duty of ₹ 16.70 lakhs through cash and on payment of this amount through cash, they can re-credit the amount of ₹ 16.70 lakhs debited earlier in their Cenvat credit account for payment of duty. While the appellant company, in the ER-1 returns filed by them, had reported the payment of self assessed duty, 18 cheques for payment of duty amounting to ₹ 34,37,391/- presented by the appellant company to the bank were not honoured due to insufficient balance in his account and in respect of 13 cheques for payment of duty amounting to ₹ 26,26,500/- whose particulars were mentioned in the returns, had never been presented to the bank. The act of dishonouring of 18 cheques of an amount of ₹ 34,37,391/- and not presenting the cheques for an amount of ₹ 26,26,500/- was never reported by the appellant company to the Department and, as such, this fact, has prima facie, been concealed. This conduct of the appellant, prima facie, would amount to clearance of goods without any intention to pay the duty and, as such, in such a situation, the judgment of Hon’ble Gujarat High Court in the case of CCE & Customs vs. Saurashtra Cement Ltd. (supra) would not be applicable. - Such conduct of an assessee, in my prima facie view, would attract for penalty under Rule 25 (1) (d) - stay granted partly.
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