TMI Blog2013 (8) TMI 208X X X X Extracts X X X X X X X X Extracts X X X X ..... ules, 2002 by utilising the cenvat credit for discharge of duty liability when he was debarred to do so, having defaulted in making payments as per the Central Excise Rules, 2002 - Decided against assessee. - Appeal No.E/10921/13 - Final Order No. A/10719/2013-WZB/AHD - Dated:- 28-5-2013 - Mr. M.V. Ravindran, J. For the Appellant: Shri M.A. Patel, Cons. For the Respondent: Shri P.N. Sarvaiya, A.R. JUDGEMENT Per: Mr. M.V. Ravindran; This stay petition is filed for the waiver of pre-deposit of the amount of interest and also the penalties imposed under Rule 25 of the Central Excise Rules and Rule 27 of the Central Excise Rules on the appellant for defaulting in payment under the provisions of Rule 8 of the Central Exci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the issue is covered by the decision of the Tribunal in the case of Solar Chemferts Pvt. Ltd. 2012 (276) ELT 273. It is his submission that as the appellant had paid the amount to the Government of India, the question of interest does not arise. As regards the penalty imposed under Rule 25, it is his submission that the judgment of the Tribunal in the case of Solar Chemferts Pvt. Ltd. was considering the very same issue and Hon ble High Court of Gujarat in the case of Saurashtra Cement Ltd. 2010 (260) ELT 71 (Guj.) has held that imposition of penalty under Rule 25 will not arise in the case of falling under Rule 8 of Central Excise Rules, 2002. As regards the penalty imposed under Rule 27 of the Central Excise Rules, 2002, it is his submiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellant subsequently on being pointed out, through TR-6 challan. I find strong force in the argument of the ld. consultant that the decision in the case of Solar Chemferts Pvt. Ltd. (supra) on the issue is in favour of the assessee. I would with respect, reproduce the ratio as contained in paragraph 13 of the said decision. 13. It is also relevant to note that even the consequence under the Act are that duty will have to be paid, interest will have to be paid, penalty will have to be paid and goods are liable to confiscation. In fact there is nothing in the Act which will bar payment of such short paid duty from Cenvat credit. Once the Act and Rule 8(3A) are read together a harmonious interpretation will be that during the period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. (supra) and the decision of this Tribunal in the case of Solar Chemferts Pvt. Ltd. (supra) for utilising the cenvat credit during the default period penalty under Rule 25 of the Central Excise Rules, 2002 is not attracted. In view of this, the penalty imposed on the assessee under Rule 25 of the Central Excise Rules, 2002 is liable to be set aside and I do so. 11. As regards the penalty imposed under Rule 27 of the Central Excise Rules, 2002, I find that the appellant has violated the provisions of Central Excise Rules, 2002 by utilising the cenvat credit for discharge of duty liability when he was debarred to do so, having defaulted in making payments as per the Central Excise Rules, 2002. To that extent, I find that both the lower ..... X X X X Extracts X X X X X X X X Extracts X X X X
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