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2016 (9) TMI 480 - CESTAT NEW DELHIQuantification of demand - demand of ₹ 11,33,711/- is not part of the total demand of ₹ 50,98,279/- - Held that:- it is found that the duty demand of ₹ 50,98,279/- pertains to the period 05.08.2006 to 31.07.2007, when the assessee cleared the goods in contravention of the provisions of Rule 8(3A) ibid, whereas, the duty demand of ₹ 11,33,711/- pertains to the period June, 2006 and July, 2006, which was not proposed for recovery in the Show Cause Notice. Thus, the adjudicating authority has not quantified the demand properly in the adjudication order. Whether the payment of defaulted amount through debit in the Cenvat account is in conformity with the provisions of Sub-rule (3A) of Rule 8 of the Central Excise Rules, 2002 - default in making payment of duty beyond thirty days from due date - Held that:- the provisions of sub-rule (3A) of Rule 8 ibid are applicable to the facts of the case, according to which the assessee was required to pay the excise duty for each consignment at the time of removal. The fact is not under dispute that out of the central Excise duty amount of ₹ 50,98,279/- payable under Rule 8(3A) ibid, the assessee had paid ₹ 7,16,712/- from PLA and the balance amount of ₹ 43,81,567/- from the Cenvat account with interest for delayed payment. So far as the restrictions contained in Rule 8(3A) ibid that Cenvat credit cannot be utilised for payment of duty on removal of goods consignment-wise, we find that the Hon'ble Gujarat High Court, in the case of Indsur Global Ltd. Vs. Union of India [2014 (12) TMI 585 - GUJARAT HIGH COURT] has declared the phrase “without utilising the Cenvat credit” contained in Rule 8(3A) as ultra vires. The effect of the said Rule after pronouncement of the above judgement is that the assessee can discharge its duty liability by making debit entry in the Cenvat account. In the present case, since the assessee has paid the entire duty through PLA and Cenvat account along with interest, in our considered view, such payment is in conformity with the provisions of Rule 8(3A) of the Rules. Imposition of penalty - non-payment of duty consignment-wise - Held that:- there is contravention of Rule 8(3A) of the Rules, for which the penalty imposed under Rule 25 of the Rules is justified. However, considering overall facts and circumstances of the case, we are of the view that penalty imposed in the adjudication order is on the higher side, which is required to be reduced in the interest of justice. - Appeal disposed of
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