TMI Blog2018 (11) TMI 720X X X X Extracts X X X X X X X X Extracts X X X X ..... emoval of the same goods again from the factory, equal amount of credit taken should be reversed. Since on receipt of the goods in the factory, the appellant had availed Cenvat Credit of the duty amount indicated in the original invoices issued to the godown, the appellant was required to pay/reverse the equal amount of Cenvat Credit so availed, at the time of removal of the same goods from the factory to the buyer’s premises - Decided against appellant. Penalty u/r 25 of the CER 2002 read with Section 11 AC of the CEA 1944 - Held that:- Considering the fact that during the relevant period, the appellant had paid excess duty of about 15 lakhs in respect of clearances of the goods, it cannot be said that short payment of duty in respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds, the Central Excise officers observed that the amount of Central Excise duty paid on removal of goods to the buyer was less than the amount recredited in the Cenvat register at the time of receipt of the goods from the godown. Thus, the department contended that the appellant is liable to pay/reverse the Cenvat Credit in terms of Rule 16 (2) of the Central Excise Rules, 2002. Accordingly, show-cause proceedings were initiated against the appellant, which culminated into the adjudication order dated 05/03/2010, wherein Cenvat demand of ₹ 4,79,991/- was confirmed along with interest and also equal amount of penalty was imposed on the appellant. On appeal, Ld. Commissioner (Appeals) vide impugned order dated 19/07/2010 has upheld the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndition, the appellant was required to reverse the equal amount of credit from the Cenvat account. Thus, he contended that since at the time of removal of goods, the appellant had paid lesser amount of duty, the balance amount has rightly been confirmed by the department on the appellant. He further contended that since levy of Central Excise duty relates to clearance of each consignment, it cannot be said that the excess paid duty in respect of some other consignments can be adjusted against removal of goods under sub-rule (2) of Rule 16 of the Central Excise Rules, 2002. He further submits that the appellant is exposed to the penal consequences provided in the statute. 4. Heard both sides and perused the case records. 5. Rule 16 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ination of the Central Excise duty liability. There is no specific mandate in the statute that in case of short payment of duty, the same can automatically be adjusted from the clearances made at the higher price previously. Separate provisions in the Central Excise statute has been made for claim of refund of such excess duty paid by the assessee. The decisions relied upon by the Ld. Advocate for the appellant are distinguishable from the facts of the present case, for the reason that the issues involved in those decided cases were not the subject matter of dispute, concerning the payment made in terms of sub-rule (2) of Rule 16 of the Central Excise Rules, 2002. Thus, as per the explicit provisions contained in the statute, the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
