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TMI Blog2015 (11) TMI 1342X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. During the scrutiny of ER-1 Returns, it was observed that the appellant had not filed ER-1 returns for the month of April, 2012 and May, 2012 on due dates and that they had failed to make the payment of duty on the due dates. The details of which are as follows: - Sl. No. Month Duty payable (PLA) Date of payment No. of days in delay 1 April, 12 Rs.3,10,367/- (PLA)- Rs. 7,381/- (Interest) 21.06.2012 & 28.09.2012 269 Rs.21,91,779/-Rs.2,92,918/- (interest) 29.01.2013 & 04.02.2013 - 2 May, 12 Rs.1,27,369/- (PLA)-Rs.2,667/- (Interest) 17.07.2012 & 28.09.2012 238 Rs.4,10,019/-/--Rs.48,528/- (interest) 29.01.2013 & 04.02.2013 Accordingly, the Revenue felt that the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to financial problems and due the absence of the Excise dealing person. The appellant further contended that they informed the jurisdiction Superintendent the fact of their payment of defaulted duty amount from PLA along with interest vide letter dated 14.11.2013. The show-cause notice was adjudicated by the Commissioner recording the find that it is not a case of deliberate default with intent to evade payment of duty or use of govt. resources to run their business. The assessee has submitted and stated that the delay in payment of part of the duty and interest thereon occurred due to financial problem and also due to absence of Central Excise dealing person. Considering the facts of the case that the assessee have already paid the duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as such the same is fit to be set aside. 3.2 The learned Counsel relies on the ruling of the Hon'ble Gujarat High Court in the case of Commissioner of Central Excise Vs. Saurashtra Cement Ltd. - 2010 (216) ELT 71, wherein the question framed for decision was whether, in the facts and circumstances of the case, the Tribunal is right in holding that the respondent assessee will attract penalty under penal provisions of Rule 27 of Central Excise Rules, 2002 and not under Rule 25 of the Central Excise Rules, 2002 and, that, the invocation of Rule 25 of the Central Excise Rules for imposition of penalty for delayed deposit of duty, is not in accordance with law? The Hon'ble High Court has recorded the finding that Rule 25 starts with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could not be paid in time and the same was paid as soon as liquidity was available with interest. Thus, it was held that the Tribunal was justified in setting aside the penalty under Rule 25 and restricting the penalty of Rs. 5000/- under Rule 27 of the Rules. 3.3 The learned Counsel also relies on the ruling of the Hon'ble Gujarat High Court in the case Commissioner of Central Excise Vs. Harish Silk Industries - 2013 (288) ELT 74 (Guj.), wherein also in the case of default in fortnightly payment, CENVAT Credit is not permissible to utilized and the assessee was ordered to pay the duty for each consignment by debiting in account current and the assessee was required to make payment of duty consignment wise from the PLA only and not to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 and the earlier Rule did not have any provision for clearing of the goods consignment-wise. The position is changed w.e.f. 1.6.2006 where the goods have been cleared without payment of duty consignment-wise. It is a settled law that under the Act and statutes, various penalty provisions are in the nature of civil obligation and did not require any mens rea or willful intention until and unless the relevant provision provides for the same and accordingly, penalty imposed of Rs. 3 lakhs, in view of the number of days of default was reduced to Rs. 50,000/-. It was further held that so far demand of duty is concerned, since the same is later on paid, the demand of duty does not survive. Accordingly, the learned AR prays for upholding the impu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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