TMI Blog2011 (6) TMI 640X X X X Extracts X X X X X X X X Extracts X X X X ..... duty paid through Cenvat credit to be paid again through cash/PLA. - Penalty under Rule 27 imposed amounting to Rs. 5000/- - E/1338/2009 - A/545/2011-WZB/C-II(EB) - Dated:- 13-6-2011 - S/Shri Ashok Jindal, Mathew John, JJ. REPRESENTED BY : Shri D.H. Nadkarni, Advocate, for the Appellant. Shri H.B. Negi, SDR, for the Respondent. [Order per : Mathew John, Member (T)]. As per their ER-1 return filed by the Appellant for the month of Dec. 2006 they should have filed duty to the extent of Rs. 16,12,837/- in PLA or in cash under a TR-6 challan by the due date i.e. 5-1-2007. They did not do so. Neither did they pay it with interest, within 30 days from the due date as provided in Rule 8(3A) of the Central Excise Rules, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting to Rs. 21,17,829/, that is, the amount of Cenvat credit utilized during the said period. 5. A Show Cause Notice in respect of the above contravention of Rules was issued which was adjudicated resulting in confirmation of duty demanded amounting Rs. 21,17,829/- under Section 11A of the Act. As already explained this amount corresponds to Cenvat credit utilized by the Appellants during the defaulting period. Interest under Section 11AB was also demanded. A penalty of Rs. 5,00,000/- under Rule 25 of Central Excise Rules, 2002 was also imposed. 6. Aggrieved by this order the Appellant has filed this appeal before the Tribunal. 7. The Appellants submits the following : (i) They are willing to pay duty in PLA provided the amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... default. (ii) the duty should be paid without availing Cenvat credit whereas duty payment through Cenvat is allowed if default was not there. The Appellant did not comply with either of the requirements. 10. Now we have to look at the penal consequences prescribed by Rule 8(3A). The Rule says that if the above two conditions are not complied with it shall be deemed that such goods have been cleared without payment of duty and the consequences and penalties as provided in these rules shall follow . 11. It is relevant to note that what is prescribed is the consequences and penalties as provided in these Rules not consequences and penalties as provided in the Act . Before deciding this issue let us examine what are the consequen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty paid during the defaulting period will be proper discharge once the default in payment from PLA, for the month of Dec. 2006 in this case, is made good and applicable interest is paid. With the result the only consequence that arises in this case is payment of interest and penalty. But interest will be payable from the date of each clearance to the date on which the default is made good that is 20-4-2007. This is so because once the defaulted amount is paid, thereafter the payment made through Cenvat become proper even if it is paid before the date on which defaulted amount is paid. So we do not find it necessary to ask the Appellant to pay duty in cash and take re-credit of equivalent amount debited in Cenvat Credit account earlier. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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