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2016 (5) TMI 1067 - AT - Central ExciseConfiscation in lieu of redemption fine - Rule 25 of the Central Excise Rules - Default in payment of duty on due date during the period 2009-10 - Appellant suo moto calculated the short paid duty and discharged the same without pointed out by the department alongwith interest and intimated to the department - Held that:- as per the said act of the appellant no show cause notice should have been issued for any demand for the reason that after payment of duty and their declaration in their letter no short payment of duty exist. Therefore, as per the provisions of Section 11A(2B), it is very clear that if duty and interest is paid on the ascertainment by the assessee the case should be concluded and no show cause notice should be issued. As per the given fact of the case, we do not see any reason why the appellant's case is not covered under the provisions of Section 11A(2B). Demand of duty alongwith interest and imposition of penalty - Utilization of Cenvat credit - Held that:- the issue has been settled by the Hon’ble Gujarat High Court judgment in case of Indsur Global Ltd Vs. Union of India [2014 (12) TMI 585 - GUJARAT HIGH COURT], wherein provision of bar of utilization of Cenvat credit in certain circumstances has been held ultravirus, accordingly the appellant is free for utilization of the Cenvat credit even during the default period of payment of duty. However, provision of consignment wise payment of duty still exist, therefore, to this extent there is non compliance of provisions, as a result appellant is require to pay interest from the date of clearance till date of payment of duty and not from the due date of monthly payment of duty. Therefore the appellant is required to pay the interest which is to be calculated from the date of clearance of the goods till the date of payment of duty. Since the appellant admittedly paid duty alongwith interest subject to correctness thereof, there was no need to issue notice for demand of such duty and appropriation thereof, consequently no penalty is imposable on the appellant. Consequential confiscation of the goods is also set aside. Decided partly in favour of appellant
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