TMI Blog2015 (5) TMI 592X X X X Extracts X X X X X X X X Extracts X X X X ..... on by the department during investigation by the department, the evasion would have gone unnoticed, is also a relevant factor to be taken into account - Decided against assessee. - W.P.No.17401 of 2008 And M.P.No.1 of 2013 - - - Dated:- 30-4-2015 - MR. S.VAIDYANATHAN, J. For Petitioner : Mr. S. Jai Kumar For the Respondent : Mr. A. P. Srinivas ORDER This writ petition has been filed, praying for the issuance of the Writ of Certiorarified Mandamus, to call for the records of the 1st respondent pertaining to the impugned order dated 8.05.2008 and to modify the final order dated 20.12.2007 passed by the 1st respondent. 2. The brief facts are that M/s.Nirmala Filaments (India) Private Limited, Coimbatore, the petitioners herein is a manufacturer of Nylon Monofilament Yarn of cross sectional dimension upto 1 mm and above 1mm, falling under Chapter heading 5404.10 and 3916.90 of the first schedule to the Central Excise Act, 1994 respectively. During the relevant period Nylon Monofilament Yarn of cross sectional dimension upto 1 mm and above 1mm was subjected to duty of excise. A show cause notice was issued, alleging that the petitioner has cleared such Yarn in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner to pay the same by communication dated 31.01.2008. In the meanwhile the petitioner had debited a further sum of ₹ 99,833/- on 01.01.2008 in full settlement of the duty liability. However, the petitioner had not paid the penalty imposed by the Commission and thereby not complied the final order. The petitioner had indulged in clearance of Nylon Monofilament yarn of cross Sectional dimension of above 1 mm in the guise of less than 1 mm for the purpose of availing the exemption notification. The claim of the petitioner that sufficient amount of Cenvat credit would have been available to them to discharge their duty liability relating to their clandestine removal of Nylon Monofilament yarn of cross sectional dimension of above 1 mm, had they availed the cenvat credit during the relevant point of time is not a plausible ground for them for claiming exemption from paying the interest. The order dated 20.12.2007 passed by the Settlement Commission is very categorical that the total liability is settled at ₹ 36,90,325/- and the petitioner shall pay interest at 10% p.a. on the duty settled from the date when the duty became due till the date of actual payment. Acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty of excise, but the fact remains that only to the extent of duty liability payable by the petitioner, over and above the cenvat credit entitlement, the duty adjusted through cenvat credit is not at all a revenue to the government, but only an adjustment. With these contentions, the learned counsel sought for setting aside the impugned order and consequently, direct the respondents to grant immunity of interest and the penalty. 6. On the other hand, the learned counsel appearing for the respondents, while reiterating the avernments of the counter affidavit filed on behalf of the respondents, contended that the writ petition is not maintainable and the order dated 20.12.2007 passed by the Settlement Commission is very categorical that the total liability is settled at ₹ 36,90,325/- and the petitioner shall pay interest at 10% p.a. on the duty settled from the date when the duty became due till the date of actual payment and the contention of the petitioner that availing of the cenvat credit during the relevant point of time is not a plausible ground for the petitioner for claiming exemption from paying the interest. He pointed out that out of the total duty demand of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the CCESC has observed in paragraph 9 and 10 in final order, dated 20.12.2007 as under: - 9. The representative of the Revenue reiterate the contentions in the written submission placed before the Bench today and submitted that but for the detection by the department, the evasion would have gone unnoticed and hence, immunity from interest should not be granted and deterrent penalty should be imposed. 10. The Bench has considered the submissions made and the arguments put forth by both sides. The point raised by Revenue regarding payment of admitted duty liability from RG 23A Part II are technical in nature and can be ignored at this stage when the matter is getting settled in a spirit of settlement. However, the Department contended regarding cenvat credit availed by the applicant on their own and requested that the cenvat credit of ₹ 23,05,625/- availed by the applicant has to be verified. The Bench agrees to the request of the Revenue and in this regard, the applicants are directed to produce the necessary input credit documents to the DGCEI for scrutiny. If on verification, it is found that the credit taken is not proper, the applicant shall pay the bala ..... X X X X Extracts X X X X X X X X Extracts X X X X
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