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TMI Blog2013 (12) TMI 1398X X X X Extracts X X X X X X X X Extracts X X X X ..... e for ring frames used in the textile industry. The petitioner has been remitting the customs duty in accordance with the Central Excise Rules. Under Rule 8 of the Central Excise Rules, the duty on the goods removed from the factory during the month, shall be paid by the Fifth day of the following month. However, due to financial crisis there was some delay in payment of Central Excise duty on monthly basis during the period from September 2011 to June 2012. The belated payment was made with interest for the delayed period. The petitioner utilised the eligible Cenvat credit of duty paid on the inputs and other eligible credits used in the manufacture of final products. However, the respondents failed to give credit to the duty paid through ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion of recognising the payment made by the petitioner by using Cenvat credit. Rival Contentions : 5. The learned Senior Counsel for the petitioner contended that the entire amount was paid with interest before the cut off date. However, while paying the duty amount, the petitioner also used the Cenvat credit which was there on its credit. The learned Senior Counsel by placing reliance on explanation to Rule 8(3A) of the Central Excise Rules, 2002 and the judgment in M/s. Techno Rubber and Plastics rep. by its Proprietor v. Customs and Central Excise, Chennai (Order dated 29 October, 2011 in W.P. No. 19909 of 2011) contended that the second respondent omitted to consider the explanation and that was the reason for demanding the ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 8(3A) reads thus : "Rule 8. Manner of Payment. - (1) The duty on the goods removed from the factory or the warehouse during a month shall be paid by the 6th day of the following month, if the duty is paid electronically through internet banking and by the 5th day of the following month, in any other case : Provided that in case of goods removed during the month of March, the duty shall be paid by the 31st day of March : .................. [(3A) If the assessee defaults in payment of duty beyond thirty days from the due date, as prescribed in sub-rule (1), then notwithstanding anything contained in said sub-rule (1) and sub-rule (4) of Rule 3 of CENVAT Credit Rules, 2004, the assessee shall, pay excise duty for each consignmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Plastics was pleased to refer Rule 8(3A) and the explanation appended thereto. The learned Judge found that the Settlement Commission failed to consider the effect of the explanation appended to Rule 8(3A) and therefore, directed the authority to consider the matter afresh. The said judgment is not an authority for the proposition that the excise duty can be paid beyond the statutory period by utilising Cenvat credit. There was no positive finding in the said order. The learned Judge directed the Settlement Commission to consider the effect of explanation appended to Rule 8(3A) of the Central Excise Rules, 2002 and to pass orders accordingly. 12. Rule 8(3A) categorically states that the assessee shall pay excise duty for each consign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so include the amount payable in terms of the Cenvat Credit Rules, 2004, would not amount to a permission for utilising the Cenvat credit for paying the excise duty. Rule 8(3A) is very specific when it provided that the entire duty should be paid without utilising the Cenvat credit. There is no question of utilising the explanation for the purpose of using the Cenvat credit for paying the outstanding duty amount. 15. The Law is, therefore, clear that the assessee is liable to pay the excise duty in accordance with the Central Excise Rules, 2002 with interest for the belated period and there is no provision for utilising the Cenvat credit for such belated payment. 16. The fact that the Assessing Authority took a different view in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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