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2014 (8) TMI 292 - CESTAT NEW DELHI (LB)Waiver of pre deposit - Default of payment of duty in terms of Rule 8 in the month of October, 2008 - subsequent clearances were effected on payment of duty partly through Cenvat credit and partly through PLA - short paid duty for the month of October, 2008 was ultimately made good in December, 2009 - Imposition of interest and penalty - Difference of opinion - Majority order - Held that:- The provision of Rule 8(3A) of Rules were before the Hon’ble Madras High Court in the case of Unirols Airtex (2013 (12) TMI 1398 - MADRAS HIGH COURT) and before the Hon’ble High Court in the case of Harish Industries (2013 (6) TMI 83 - GUJARAT HIGH COURT). While interpreting this provision, the Hon’ble High Court, held that in the case of default of payment of duty on due date, the manufacturer has to clear the goods on consignment basis by making duty from PLA. In view of the above, decision of the Hon’ble High, the prima facie, the applicants had not made out a strong case for waiver of pre-deposit of duty. In respect of the pre-deposit of penalty which is imposed under Section 11AC, the Hon’ble Gujarat High Court in the case of C.C.E. & Customs vs. Saurashtra Cement Ltd. reported in [2010 (9) TMI 422 - GUJARAT HIGH COURT] held that in such case, the penalty is imposable under Rule 27 of the Central Excise Rules, 2002 which is restricted upto ₹ 5,000/-. In view of the majority order, the appellant is directed to make pre-deposit of ₹ 20,07,725/- (Rupees twenty lakh seven thousand seven hundred twentyfive only) along with deposit of penalty of ₹ 5,000/- (Rupees five thousand only) as a condition of hearing of their appeal - stay granted partly.
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