TMI Blog2013 (9) TMI 343X X X X Extracts X X X X X X X X Extracts X X X X ..... 60% of duty when the omission was limited to default of payment of duty and the same had been discharged with interest - In fact, CENVAT account had been debited and therefore it cannot be said that there was removal without payment of duty - Relying upon CCE, Meerut v. Kitply Industries Ltd.[ 2010 (2) TMI 221 - ALLAHABAD HIGH COURT] - Penalty under Section 11AC was not imposable in cases where default had occurred because of bona fide mistaken belief - It was only a deemed removal without payment of duty - Penalty of Rs. 50,000 under Rule 25 would meet the ends of justice in the case - while rejecting the appeal otherwise penalty was reduced. Rule 8(3A) provided that in the case of default beyond 30 days, the facilities of monthly payme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of CCE, Meerut v. Kitply Industries Ltd. - 2010 (252) E.L.T. 18 (All.), to submit that penalty under Section 11AC was not imposable and maximum penalty that can be imposed is only Rs. 5,000/- (Rupees Five Thousand only) in cases where default has occurred because of bona fide mistaken belief. He also relied upon the decision of the Tribunal in the case of CCE, Mangalore v. Ramson Rigid PVC Pipes - 2010 (254) E.L.T. 473 (Tri.-Bang.), to submit that there was no intention to evade payment of duty and therefore penalty under Section 11AC was not warranted. He relied upon the decisions in the cases of Tejpal Paper Mills Ltd. v. CCE, Ahmedabad - 2010 (259) E.L.T. 79 (Tri.-Ahmd.), CCE v. Saurashtra Cement Ltd. - 2010 (260) E.L.T. 71 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a period of 30 days from the said date, then the assessee shall forfeit the facility to pay the duty in monthly instalments under sub-rule (1) for a period of 2 months, starting from the date of communication of the order passed by the Assistant Commissioner of Central Excise or the Dy. Commissioner of Central Excise, as the case may be, in this regard or till such date on which all dues including interest thereof are paid, whichever is later, and during this period notwithstanding anything contained in sub-rule (4) of rule 3 of CENVAT Credit Rules, 2004, the assessee shall be required to pay Excise duty for each consignment by debit to the account current and in the event of any failure, it shall be deemed that such goods have been cleare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this regard by the Assistant Commissioner or the Dy. Commissioner. It has become the responsibility of the assessee to pay duty consignment-wise from account current and clear the goods. In the event of failure, the goods were to be deemed to have been cleared without payment of duty and the consequences and penalties as provided in the Central Excise Rules were to follow. 6. The decisions cited by ld. Consultant, to submit that the penalty under Rule 27 only is imposable and not under Rule 25, were rendered prior to amendment of Rule 8(3A) of Rules. In the case of Saurashtra Cement Ltd., the Hon ble High Court of Gujarat held that penalty under Rule 25 would be imposable in case the default in payment of duty because of none of the ing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad - 2009 (244) E.L.T. 580 (Tri.-Ahmd.) (iv) Sam Turbo Industries Ltd. v. CCE, Salem - 2006 (200) E.L.T. 87 (Tri.-Chennai) (v) Sai Packaging Industries v. CCE, Chennai - 2010 (253) E.L.T. 107 (Tri.-Chennai) (vi) A.R. Metallurgicals (P) Ltd. v. CCE, Chennai - 2011 (263) E.L.T. 411 (Tri.-Chennai) (vii) CCE v. Gre Shyam Co. - 2009 (246) E.L.T. 291 (Tri.-Del.) 7. The discussion above clearly shows that none of the decisions cited by the ld. Consultant are applicable to the facts of this case and penalty under Rule 25 is imposable. 8. While uploading penalty imposed, it also becomes necessary to examine the circumstances under which the default occurred since penalty under Rule 25 is not a mandatory penalty subject to a min ..... X X X X Extracts X X X X X X X X Extracts X X X X
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