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2018 (1) TMI 257 - AT - Central ExciseUtilization of CENVAT credit account - vires of Rule 8 (3A) - Held that: - since utilization of Cenvat credit account, during the default period has been declared ultra vires, therefore the appellant has not violated the provisions of Rule 8 (3A) of Central Excise Rules, 2002. If the availability of Cenvat credit is taken into account, in that circumstance, no demand is sustainable against the appellant. Confiscation - redemption fine - Held that: - although during the defaulted period, the appellant has violated the provision of Rule 8 (3A) which has been declared ultra vires, in that circumstance, the credit can be utilized but under the said provisions, the goods are to be cleared on consignment wise, therefore, the goods are liable for confiscation. As the goods are not available for confiscation and not cleared under any bond, therefore, redemption fine cannot be imposed on the appellant - redemption fine set aside. Penalties u/r 25 & 26 of the CER, 2002 - Held that: - As the penalty under these rules can be imposed subject to the condition of section 11AC of the Act but the ingredients of section 11AC are missing. Therefore, the penalties under Rule 25 and 26 are not imposable on the appellant. Penalty u/r 27 - Held that: - as per Rule 8 (3A) of Central Excise Rules, 2002 as they were not paying duty on consignment wise, in that circumstance, during the defaulted period, the penalty is imposable. For such default, the provisions are invokable of Rule 27 of the Central Excise Rules, 2002 which prescribes a penalty of ₹ 5,000/- during the period in default can be imposed on the appellant - penalty on main appellant i.e. M/s.Ess Ess Kay Engg. Co.Pvt.Ltd. upheld. Appeal disposed off.
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