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TMI Blog2023 (6) TMI 189X X X X Extracts X X X X X X X X Extracts X X X X ..... 8/Bel-IV/RII/ Commr/KA/12-13 dated 28.09.2012 Shree Paresh S. Vohra 2. By the impugned order following has been held:- Order-in-Original No. Belapur/37/Bel-IV/R-II/Commr/ KA/12-13 dated 28.09.2012 33. In view of the foregoing discussions and findings, I pass the following order: (i) I confirm the demand of Differential Central Excise duty amounting to Rs.70,92,658/- [Plot No R-83B = Rs 35,22,658/- + Plot No R-865 = Rs 35,70,000] as detailed in Annexure-A to the show cause cum demand notice from M/s. Hatkesh Chemicals & Pharmaceuticals Pvt. Ltd./under erstwhile proviso to section 11A(1)[now Section 11A(4)] of the Central Excise Act, 1944, on removal of goods without payment of duty and the differential Central Excise duty of Rs.70,92,658/- [ Plot No R-83B = Rs 35,22,658/- + Plot No R- 865 = Rs 35,70,000]deposited as detailed in Para 13 above by M/s Merck Specialities Pvt. Ltd on behalf of M/s HCPPL, is appropriated towards the above demand. (ii) I order Payment of Interest at the appropriate rate on Central Excise duties as determined and demanded at Sr No (i) above from M/s. Hatkesh Chemicals & Pharmaceuticals Pvt. Ltd under the provisions of erstwhile Section 11AB [ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confiscated under the provision of rule 25 of the Central Excise Rules, 2002. Since the said goods have already been cleared and are not available for confiscation, I impose a fine of Rs.50 lakhs upon them in lieu of confiscation of the goods under the provisions of Section 34 of the Central Excise Act, 1944 and order the adjustment of Bank Guarantee executed in respect of the seized goods at the two premises of M/s Merck Specialities Pvt. Ltd., Navi Mumbai. (x) The goods seized at the premises of M/s Scientific Agencies Pvt. Ltd. by the officers of the Central Excise, Faridabad Commissionerate is confiscated. However I give the option to redeem the goods on payment of Redemption Fine of Rs.3,000/-. The option should be exercised within one month of receipt of this Order. Order-in-Original No. Belapur/38/Bel-IV/RII/ Commr/KA/12-13 dated 28.09.2012 32. In view of the foregoing discussions and findings, I pass the following order.- i) I confirm the demand of Differential Central Excise duty amounting to Rs.15,04,418/- [ Plot No R-83A = Rs 11,99,295/- + Plot No W-359 = Rs 90,000/- + Plot No R-420 = Rs 2,15,123/-] as detailed in Annexure-A to the show cause cum demand notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tries Pvt. Ltd, Plot No R-83A, W-359 & Plot No R-420 as per the provisions of Rule 15 (2) of the Cenvat Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944. (vii) I impose Penalty of Rs.25,00,000/- on M/s. Shree Mantralayam Chemical Industries Pvt. Ltd for contravention of Rule 4, and Rule 8 of the Central Excise Rules, 2002 under the provisions of Rule 25 of the Central Excise Rules, 2002. (viii) I impose Penalty of Rs. 25,00,000/- on Shri Paresh S. Vohra, Director of M/s Shree Mantralayam Chemical Industries Pvt. Ltd, under Rule 26 of the Central Excise Rules, 2002. (ix) the impugned goods of M/s SMCIPL valued at Rs 3,16,51,311/- in r/o Plot No R-83A for period from September 2007 to January,2009 + Rs 1,84,84,257/- in r/o Plot No W-359 for period from September 2009 to November 2009 & + Rs 2,05,47,575/- in r/o Plot No R-420 for period from March 2009 to November 2009 = [ total Rs 7,06,83,143/-] is confiscated under the provision of rule 25 of the Central Excise Rules, 2002. Since the said goods have already been cleared and are not available for confiscation, I impose a fine of Rs 50 Lakhs upon them in lieu of confiscation of the goods under the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e paid by the 6th day of the following month, if the duty is paid electronically through internet banking and by the 5th day of the following month, in any other case. First proviso to sub-rule (1) provides that in case of goods removed during the month of March, the duty shall be paid by the 31st day of March. Relevant portion of sub-rule (1) of Rule 8 reads as under : "Rule 8. Manner of payment - (1) The duty on the goods removed from the factory or the warehouse during a month shall be paid by the 6th day of the following month, if the duty is paid electronically through internet banking and by the 5th day of the following month, in any other case : Provided that in case of goods removed during the month of March, the duty shall be paid by the 31st day of March............." Sub-rule (2) of Rule 8 provides that the duty of excise shall be deemed to have been paid for the purposes of these rules on the excisable goods removed in the manner provided under sub-rule (1) and the credit of such allowed, as provided by or under any rule. Sub-rule (3) of Rule 8 requires the assessee who fails to pay the duty by due date to pay the same along with interest. Sub-rule (3) reads as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y at the rate of one per cent for each month or part thereof calculated from the due date. 21. From the statutory provisions, it can be seen that ordinarily as per Rule 4, duty on excisable goods is payable on removal. Such payment is to be made in the manner prescribed in Rule 8. Sub-rule (1) of Rule 8 provides for a facility of deferred payment of excise duty. Instead of an assessee paying duty on removal of each consignment, the duty is to be paid for the entire month by the due date which is the 6th day of the following month if the duty is paid electronically through internet banking and in all other cases, it would be the 5th day of the following month. It is in this context, therefore, under sub-rule (2) of Rule 8, it is provided that the duty of excise shall be deemed to have been paid for the purpose of the rules on the excisable goods removed in the manner provided under sub-rule (1) and the credit of such duty shall be allowed as provided under the rules. Combined reading of Rule 4 with Rules 8(1) and 8(2) of the Central Excise Rules would demonstrate that ordinarily excise duty is payable on removal. In terms of sub-rule (1) of Rule 8, deferment is granted by the Leg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt in the case of State of Jammu & Kashmir v. Triloki Nath Khosa - AIR 1974 SC 1. It is also well settled that the principle of presumption of constitutionality also applies to a delegated legislation. In the case of St. Johns Teachers Training Institute v. Regional Director, National Council for Teacher Education - (2003) 3 SCC 321, it was observed that "it is also well settled that in considering the vires of subordinate legislation one should start with the presumption that it is intra vires and if it is open to two constructions, one of which would make it valid and other invalid, the Courts must adopt that construction which makes it valid....". 6. Hon'ble Bombay High Court has in the case of Nasik Forge [2019 (26) G.S.T.L. 478 (Bom.)] has held as follows "6. However, it must be pointed out that Mr. Ochani, Learned Counsel appearing for the Appellant invited our attention to an order dated 5th February, 2018 passed by this Court in Central Excise Appeal Nos. 24 of 2016 and 28 of 2016 wherein, the Court was informed that an identical issue had been raised before the Apex Court and this Court had adjourned both the appeals sine die. This for awaiting the decision of the Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X
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