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2015 (11) TMI 1342 - CESTAT MUMBAI

2015 (11) TMI 1342 - CESTAT MUMBAI - TMI - Duty demand - Failure to make payment of duty on due dates - violation of sub-rule 3A of Rule 8 of Central Excise Rules, 2002 - confiscation under the provisions of Rule 5 of the Central Excise Rules, 2002 - penalty be imposed under Rule 25/27 of the Central Excise Rules, 2002 - Held that:- penalty under Rule 25 can be imposed only on satisfaction of pre-condition, the condition laid down for the penalty under Section 11AC of the Act. As the return (TR- .....

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cided in favour of assessee. - Appeal No. E/89903/13 - Dated:- 7-4-2015 - SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL) For the Petitioner : Ms. Padmavati Patil, Advocate For the Respondent : Shri N.N. Prabhudesai, Supdt. (AR) ORDER Per: Shri Anil Choudhary The appellant, M/s Hoya Lens India Pvt. Ltd., is in appeal against Order-in-Original No. Belapur/112/Bel-I/R-IV/COMMR/KA/2013-14 dated 18.11.2013 passed by the Commissioner of Central Excise, Belapur. 2. The brief facts of the case are that the appe .....

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p; 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 had defaulted in payment of excise duty as prescribed and had as per Revenue, paid beyond 30 days from the due date, they are required to pay duty for each consignment at the time of removal of goods from the facto .....

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5 of the Central Excise Rules, 2002 and as to why not penalty be imposed under Rule 25/27 of the Central Excise Rules, 2002. The appellant contested the show-cause notice by filing reply stating therein that for the month of April, 2012, out of total duty liability is ₹ 25,02,146/- they have paid ₹ 21,91,779/- by debiting through CENVAT Credit. Balance ₹ 3,10,367/- payable by 5th May was paid on 21.6.2012 and the interest was paid on 28.9.2012. Similarly for the month of May, .....

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efaulted 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 .....

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rovisions of law and the existing ruling by the Tribunal and High Courts. It is further stated that the appellant have suo motu paid interest on the amount of duty paid through PLA and also on the amount of duty paid by debit of the CENVAT Credit account. Further, the appellant had paid duty and the interest suo motu and had also filed the returns although after a delay of few days from the due date. 3.1 It is further urged that from a plain reading of Rule 25, it is evident that section starts .....

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in imposing the penalty under Section 11AC read with Rule 25 and 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 o .....

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e duty of excise have not been levied or paid or have been short levied or short paid or erroneously refunded by reasons of fraud, collusion of any of the provisions of this Act or of the Rules made thereunder with intent to evade payment of duty, the person who is liable to pay duty shall also be liable to pay a penalty equal to the duty so determined. For the purpose of invoking section 11AC of the Act, the condition precedent is that the duty has not been levied, or paid or short levied or sh .....

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h observation and finding the Hon ble Gujarat High Court confirmed the order of the Tribunal and dismissed the appeal filed by the Revenue by holding that there was no intention on part of the respondent assessee to evade any payment of duty and it was only because of stringent financial condition that the duty 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 .....

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ake payment of duty consignment wise from the PLA only and not to have utilized the payment of CENVAT Credit till the payment of duty including interest thereon. Considering the question on imposition of penalty under Rule 25 read with Section 11AC of the Act, it was held that the requirement of Section 11AC have to be satisfied while imposing penalty under Rule 25. If there is no fraud, collusion or any willful mis-statement or suppression of facts or contravention of the provisions of Act and .....

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essings, wherein the facts that the assessee had defaulted in monthly payment of duty for the month of October, 10 and the default was not made good within 30 days of the due date, in such circumstances, the appellant was required to pay excise duty for each consignment at the time of removal without availing the CENVAT Credit. But the assessee continued to clear the goods without complying with the provisions of Rule 8(3A) and there have been similar default in the month of November and Septemb .....

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