9911796707
TMI Blog2013 (1) TMI 439X X X X Extracts X X X X X X X X Extracts X X X X ..... terest on that duty at specified rate would be chargeable. There was further provision that in case an assessee defaulted in payment of any instalment by the due date and the default continued beyond the period of thirty days from the due date, the assessee shall forfeit the facility to pay the duty in instalments under this rule for a period of two months, starting from the date of communication of the order passed by the Assistant/Deputy Commissioner of Central Excise in this regard or till such date on which all dues are paid, whichever is later, and during the period of forfeiture, the assessee shall be required to pay excise duty for each consignment by debit in the PLA and in the event of any failure to do so, 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. In this case, the respondent first failed to discharge the duty liability amounting to Rs. 22,86,518/- for the fortnight from 16-11-2001 to 30-11-2001 and thereafter they failed to pay the duty of Rs. 17,61,484/- for the fortnight from 16-1-2003 to 31-1-2003 by the due date. In both the cases, the duty due for the fortn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent put forth by the Commissioner (Appeals) to conclude that there was no intent to evade payment of duty and no penal action is warranted, is not acceptable, as there is no provision in the Central Excise Rules to give such benefit to an assessee, more so, when the Respondent had collected the duty from the customers. He, therefore, pleaded that the impugned order setting aside the penalty is not correct. 4. Shri Mayank Garg, ld. Advocate for the Respondent, pleaded that the Respondent had declared the non payment of duty in ER-1 returns which is clear from the fact that the same was detected during scrutiny of ER-1 returns, that the Respondent's failure to discharge duty liability by the due date was due to financial difficulty; that there was no intention on their part to evade the payment of duty; that neither any clearances had been made in contravention of the provisions of Central Excise Rules, nor non payment of duty by due date was due to any fraud, wilful contravention of the Rules etc.; that neither the provisions of Rule 25 nor the provisions of Section 11AC of the Central Excise Act are applicable, that Respondent's failure to discharge duty liability by due ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the order-in-original as well as order-in- appeal, it is not clear as to whether the appellant have paid the interest on the duty also for the period of delay. 6.2 The point of dispute in this case is as to whether in the circumstances of the case penalty under Rule 25(1) read with Section 11AC of the Central Excise Act, 1944 was imposable on the appellant or not. The Commissioner (Appeals) has set aside the penalty on the ground that failure to discharge the fortnightly duty liability by the due date was on account of financial hardship of the appellant and that the whole amount of duty has either been paid or recovered from them and though the interest is also liable to be recovered from them, the appellant have not contested the charging of interest. The Revenue has challenged this order of the Commissioner (Appeals) on the ground that since the appellant by their failure to discharge the fortnightly duty liability by due date have contravened the provisions of Central Excise Rules, 2001/2002, penalty under Rule 25 read with Section 11AC of the Act would be attracted and as such the order of the Commissioner (Appeals) setting aside the penalty is incorrect. It has also b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of fortnightly payment of duty to the assessee and making him discharge the duty liability, consignmentwise and only through PLA, failing which the clearances of the goods in respect of which the duty was not paid consignmentwise - and/or was not paid through PLA, shall be deemed to be the cleanses made without payment of duty and all the consequences of Rules shall follow. This punishment period starts from the date of the order of Assistant/Deputy Commissioner for a period of two months or till the date on which all the dues are paid, whichever is later. If during the forfeiture punishment period the assessee, instead of paying duty consignmentwise and through PLA still pays duty on fortnight basis or by utilizing Cenvat credit, the clearances will be deemed to have been made without payment of duty and accordingly all the consequences will follow, which will ' include penal provision of Rule 25. 8.2 In this case, the records do not show that any orders under Rule 8(4) had been passed by the jurisdictional Assistant/Deputy Commissioner and that during the forfeiture period the Respondent had not paid duty consignmentwise and through PLA. The allegation of the Department is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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