TMI Blog2016 (5) TMI 1067X X X X Extracts X X X X X X X X Extracts X X X X ..... the ascertainment by the assessee the case should be concluded and no show cause notice should be issued. As per the given fact of the case, we do not see any reason why the appellant's case is not covered under the provisions of Section 11A(2B). Demand of duty alongwith interest and imposition of penalty - Utilization of Cenvat credit - Held that:- the issue has been settled by the Hon’ble Gujarat High Court judgment in case of Indsur Global Ltd Vs. Union of India [2014 (12) TMI 585 - GUJARAT HIGH COURT], wherein provision of bar of utilization of Cenvat credit in certain circumstances has been held ultravirus, accordingly the appellant is free for utilization of the Cenvat credit even during the default period of payment of duty. Howev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d accordingly order their confiscation. Redemption fine of ₹ 3,73,77,103/- is imposed upon in lieu thereof. 2. I hereby confirm C. Ex. Duty of ₹ 1,24,12,514/- consignment wise under the provisions of section 11A of the Central Excise Act, 1944 including proviso thereto read with Rule 8(3A) of the Central Excise Rules, 2002 and the total payment made by them by challans amounting to ₹ 1,17,45,152/- is ordered to be appropriated against the amount confirmed. 3. I hereby confirm the differential Central Excise duty of ₹ 6,48,471/-+Ed. Cess ₹ 12,593/- + S H Ed. Cess ₹ 6,298/-(Total ₹ 6,67,362/-) and order for its recovered from them in cash against the irregular debit made from Cenvat credit by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 11A read with Rule 8(3A) of Central Excise Rules out of which an amount of ₹ 1,17,45,152/- already paid by the appellant was proposed to be appropriated. Demand of ₹ 6,48,471/- was proposed for the reason that the same was debited through Cenvat credit account. Interest under Section 11AB read with Rule 8(3A) of Central Excise Rules was proposed and penalty of ₹ 1,24,12,514/- under Section 11AC was proposed to be imposed. In the adjudication, all the proposal made in the show cause notice had been confirmed, goods were confiscated with an option of redemption on payment of fine ₹ 3,73,77,103/- under Rule 25 of the Central Excise Rules. Aggrieved by the adjudication order dated 9/8/2012 appellant is before u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovision of Rule 8(3A) as ultravirus in respect of provisions which bars the utilization of Cenvat credit. In view of this judgment there is no bar on utilization of Cenvat credit for payment of duty. As regard confiscation of the goods, he submits that firstly goods which were confiscated are not available and the same was not seized. It is settled position that when goods are not available the same cannot be confiscated. Secondly the good were admittedly cleared under the cover of valid duty paying documents showing the amount of duty payable. This is only case of delayed payment of duty and not a case of clandestine removal of goods, for this reason also goods should not have been confiscated. 4. Shri. V.K. Agrawal, Ld. Addl. Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [(2A) -------------- [(2B) Where any duty or excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the person, chargeable with the duty, may pay the amount of duty71 [on the basis of his own ascertainment of such duty or on the basis of duty ascertained by a Central Excise Officer] before service of notice on him under sub-section (1) in respect of the duty, and inform the Central Excise Officer of such payment in writing, who, on receipt of such information shall not serve any notice under sub-section (1) in respect of the duty so paid: Provided that the Central Excise Officer may determine the amount of short payment of duty, if any, which in his opinion has not been paid by such pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the provisions of Section 11A(2B). 6.1 As regard the utilization of Cenvat credit, issue has been settled by the Hon ble Gujarat High Court judgment in case of Indsur Global(supra) wherein provision of bar of utilization of Cenvat credit in certain circumstances has been held ultravirus, accordingly the appellant is free for utilization of the Cenvat credit even during the default period of payment of duty. However, provision of consignment wise payment of duty still exist, therefore, to this extent there is non compliance of provisions, as a result appellant is require to pay interest from the date of clearance till date of payment of duty and not from the due date of monthly payment of duty. Therefore the appellant is required to pay ..... X X X X Extracts X X X X X X X X Extracts X X X X
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