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M/s. Praweg Conveyors Versus Commissioner of Central Excise, Kalyan III

2016 (8) TMI 238 - CESTAT MUMBAI

Imposition of penalty under rule 25 payment of duty during the default period under Rule 8(3A) - Held that:- Utilization of cenvat credit for payment of duty during default period permissible. Gujarat High Court judgment in case of Indsur Global Ltd (2014 (12) TMI 585 - GUJARAT HIGH COURT) apply. - As per the interpretation drawn by the Honble High court in the above judgment regarding the imposition of penalty under Rule 25, in the present case also it is not the case of non levy/ short .....

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For the Respondent : Shri. Sanjay Hasija, Superintendent (A.R.) ORDER PER : RAMESH NAIR This appeal is directed against Order-in- Appeal No. SB/134/Th-I/10 dated 31/8/2010 passed by the Commissioner (Appeals), Central Excise, Mumbai Zone I, whereby Ld. Commissioner(Appeals) upheld the Order in Original dated 16/2/2009 and rejected the appeal filed by the appellant. 2. The fact of the case is that the appellant defaulted the monthly payment of excise duty for the month of May,2005, August, 2005 .....

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e Adjudicating the show cause notice imposed penalty of ₹ 7,58,552/- under Rule 25(1) (a) of Central Excise Rules, 2002 read with Section 11AC of the Central Excise Act, 1944. This penalty amount is equal to the duty amount for the period April, 2006 and May, 2006. Aggrieved by the said Order-in-Original, the appellant filed appeal before the Commissioner(Appeals) who rejected the appeal, therefore appellant is before me. 3. Ms. Padmavati Patil, Ld. Counsel for the appellant submits that a .....

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further submits, as regard the penalty under Rule 25 she relied upon the judgment in case of Commissioner of C. Ex. & Customs Vs. Saurashtra Cement Ltd [2010(260) ELT 71(Guj)] according to which the penalty under Rule 25 can be imposed when the ingredients provided under Section 11AC are satisfied whereas this is not the case of suppression or willful mis-statement, fraud and collusion etc. therefore penalty under Rule 25 cannot be imposed. 4. Shri. Sanjay Hasija, Ld. Superintendent (A.R.) .....

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351(Tri. Mumbai)]. 5. I have carefully considered the submissions made by both sides. 6. I find that this is a case of imposition of penalty under Rule 25 which is equal to the duty amount payable during the month of April and May, 2006. The penalty was imposed on the ground that the appellant during April and May 2006 cleared the goods without paying the duty on consignment basis. Duty was paid for these period on monthly basis and debited the Cenvat credit account. Fact is not under dispute t .....

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h Court Judgment in case of Indsur Global Ltd(supra) has clearly held that the duty during the default period is required to be paid on consignment basis. However appellant have discharged the duty and whatever delay in payment of duty on the basis of date of clearance of the goods, they have paid interest as applicable. This is a case of delay in payment of duty and cannot be construed as case of evasion of duty, therefore appellant is not liable for penalty under Rule 25. In the judgment cited .....

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en short levied or short paid or erroneously refunded by reasons of fraud, collusion or any willful misstatement or suppression of facts, or contravention 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 as determined under sub-section (2) of Section 11AC, 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 .....

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