9911796707
TMI Blog2012 (9) TMI 240X X X X Extracts X X X X X X X X Extracts X X X X ..... te that in terms of Rule 8(1), an assessee availing small-scale exemption is allowed to pay duty on the goods cleared during a month by the 15th day of the following month whereas other assessees are required to pay duty by the 5th day of the following month. The Department's case is that for the month of May 2005, the Appellants paid duty on 15-7-2005 thereby contravening the provisions of Rule 8(1). Rule 8(3A) of the Central Excise Rules, 2002 provides that if there is any default in payment of duty beyond 30 days from the due date, an assessee shall pay duty for each consignment without utilizing Cenvat Credit, till the date the assessee pays the outstanding amount and interest thereon. The impugned Order-in-Original does not dispute tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the Tribunal. As the matter has been travelling back and without reaching any finality even though the matter pertains to May 2005, with the consent of both sides, the requirement of pre-deposit is waived and the Appeal itself is taken up for hearing and disposal. 4. I have considered the submissions from both sides including the case records and the relevant case-laws. Rule 8(1) in a very clear language in its second proviso states that where an assessee is 'availing' small-scale exemption, he is allowed to pay duty by 15th day of the following month. As such, the Appellants were required to pay duty for the month of May, 2005 by 5th of June 2005, since they had opted out of the small-scale exemption scheme, i.e. they were no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve paid duty during this period consignmentwise and not on a monthly basis. 5. In view of the aforecited decisions of the Larger Bench of the Tribunal and of the Hon'ble Bombay High Court, the main charge against the Appellants that they have not paid duty for the period, 17-10-2005 to 17-12-2005, cannot be sustained. As regards the secondary contravention of not paying the duty consignmentwise, the same has to be viewed in the context of the Appellants' bona fide belief that since paragraph 2(i) of the small-scale exemption Notification No. 8/2003-C.E., dated 1-3-2003 was merely a condition of the small-scale exemption, they were entitled to opt out of the same, but they were still qualifying under the criteria of the small-scale exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be reduced, and I accordingly reduce the same to Rs. 5,000.00 (Rupees Five Thousand) only, considering all facts and circumstances. I find that separately, penalties have been imposed both on the Appellant Managing Director and Appellant Executive Director of the Appellant Company, which are not warranted in view of the foregoing. Hence, the same are set aside. As regards the demand of duty and interest, the same are also set aside in view of the cited Larger Bench decision and cited decision of the Hon'ble Bombay High Court holding that payment by CENVAT credit is as good as by cash. 8. Consequently, Excise Appeal No. 707/10 is partly allowed setting aside the duty and interest and reducing the penalty amount to Rs. 5,000.00, and Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X
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