TMI Blog2014 (1) TMI 263X X X X Extracts X X X X X X X X Extracts X X X X ..... ra Cements Ltd. [2010 (9) TMI 422 - GUJARAT HIGH COURT] – thus, the assessee is liable to pay Rupees five thousands as penalty – Decided partly in favour of Assessee. - E/1026 and 2536/2010 - Final Order No. 354 and 355/2012 - Dated:- 1-6-2012 - P.G. Chacko, J. For the Appellant : K. Parameshwaran, Adv. For the Respondent : Ravi Chandran, AR JUDGEMENT:- P.G. Chacko:- M/s Bactolac Formulations Pvt. Ltd. (hereinafter referred to as the assessee) are engaged in the manufacture of P or P medicaments. During the material period, they were discharging their duty liability by filing monthly ER-1 returns, in which scheme duty in respect of excisable clearances of a given month had to be paid or on before the 5th day of the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Appeals) reduced the quantum of penalty imposed under Rule 25 to Rs.50,000/- (Rupees fifty thousands only). 2. The assessee's appeal is directed against the penalty of Rs.50,000/- while the department's appeal is against the appellate Commissioner's order setting aside the demand of duty and interest thereon. The department, in their appeal, also seeks enhancement of the penalty to the original level. 3. On a perusal of the records, and considering the submissions of both sides, I note that the main issue to be settled is whether an amount of Rs.75,726/-, being the sum of BCD and education cess paid through debits in the CENVAT credit account for the month of April 2007, is recoverable from the assessee in view of Rule 8(3A) of the Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ban on taking of credit. There is a ban only on utilization of Cenvat Credit for payment of duty. Now the fact to be noticed is that the adjudication order does not deal with the Cenvat credit utilized during the defaulting period for payment of the duty due on the goods, though such utilization is in contravention of the provisions of Rule 8(3A). If duty as demanded in the adjudication order is also to be paid (in cash) and if thereafter the amount utilized in Cenvat credit is not refunded. There is double payment of duty on the same goods. There is no authority under law for collection of duty twice." 5. It is the above view that stands accepted by the department and, therefore, the present appeal of the department is liable to be dismi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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