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2015 (5) TMI 59 - CESTAT NEW DELHICENVAT Credit - appellant, did not pay its duty though the duty payable has been declared in the ER-I Return - According to the appellant non-payment of duty was due to clerical mistake - Held that:- In the circumstances of the case, this was not a case of default, as in the ER-I return for September, 2001 filed by the appellant while the appellant had showed duty payable as ₹ 1,29,541/- they had also shown the cenvat credit balance which was more than sufficient to discharge the duty liability and therefore, there is merit in the appellants plea that non-payment of duty, which is a small amount for such a big company, was due to bonafide mistake. In any case, when the provisions of Rule 8 (3A) of Central Excise Rules requiring an assessee to pay duty through PLA without utilizing the credit during the period of default beyond the period of one month have been declared as unconstitutional, impugned order itself would not be sustainable. In any case, we do not understand, as to why the Commissioner in respect of the show cause notice dated 02.09.2013 for the period from October, 2012 to June 2013 has confirmed the demand of ₹ 69,06,534/- which had been paid through PLA and has included this amount while imposing penalty of ₹ 69,91,429/-. Prima-facie the order has been passed without any application of mind at all - requirement of pre-deposit of the duty demand, interest and penalty is, therefore, waived for hearing of the appeal and recovery thereof stayed - Stay granted.
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