TMI Blog2013 (6) TMI 180X X X X Extracts X X X X X X X X Extracts X X X X ..... e said defaults will mean discharge of duty along with interest and also a liability to face penalty. Therefore, confirmation of demand and interest have been correctly made by Commissioner (Appeals) in his order in appeal. There is no doubt that appellant will be entitled to the credit what he has utilised in payment of Central Excise duty earlier when the entire default period duty and interest is paid in cash or through PLA. Equivalent penalty imposed - Held that:- Penalty is imposable under Rule 173Q (1) of Central Excise Rules, 1944 or Rule 25(1) of the Central Excise Rules 2001 because appellant's conduct has led to an act which is deemed to be clearances without payment of duty and also the act on the part of the appellant is liab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustries Pvt. Limited vs. CCE Surat [2004 (169) ELT 171 (Tri. Mumbai)]. This case was again decided by CESTAT Ahmedabad vide order dated 28.8.2009 in the light of the Larger Bench judgment in the case of Noble Drugs Limited vs. CCE Nasik [2007 (215) ELT 500 (Tri. LB)]. Department again took the case to Hon'ble High Court of Gujarat in Tax Appeal No. 719/2010 agitating that the case of Elson Packaging Industries Pvt Limited has also been confirmed by the Hon'ble High Court as reported in - 2010 (257) ELT 59 (Guj), and Hon'ble CESTAT has not followed High Court's directions. The Hon'ble High Court vide order dated 06.8.2012 again remanded the case back to CESTAT to reconsider this case in the light of law laid down in the case of Elson Packagi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e been cleared without payment of duty and the consequences and penalties as provided in the Central Excise Rules shall follow." 5. The above provisions were interpreted by CESTAT in the case of Elson Packaging Industries Pvt Limited vs. CCE Surat [2004 (169) ELT 171 (Tri. Mumbai)] as follows in Para 8:- "8. As is seen the requirement of the above rule is to pay duty for each consignment by debit to the account current referred in clause (b) of Rule 173G(1) which is to the effect that the manufacturer shall maintain an account current with the Commissioner and shall discharge his duty liability by debiting such account current or by utilizing Cenvat Credit (emphasis provided.) As such, the said rule refers to two modes of payment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Excise Rules, 1944 (the Rules) there is no infirmity in the order of the Tribunal which would give rise to any question of law. The Tribunal has correctly read the rule to mean that out of two different modes of payment of duty viz. (1) by debit to account current, or (2) while utilising Cenvat credit as provided in Rule 173G(1)(b) of the Rules one of the modes viz. by utilising the Cenvat credit, is not permitted for the limited period during which a manufacturer defaults in terms of Rule 173G(1)(e) of the Rules and forfeits the facility to pay the dues in instalments for a period of two months. This prohibition per se does not take away or affect the right of the appellant assessee to Cenvat credit which may be available to hi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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