TMI Blog2004 (4) TMI 137X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be liable to pay interest and penalty in case of payment of duty out of Cenvat Credit account during this period. 2.Learned Advocate, Shri V. Sridharan appearing for the appellants fairly agrees that there are number of decisions of the Tribunal holding that during the period of forfeiture of facility to pay on fortnightly basis, the duty is to be paid only from PLA and consequence of interest and penalty also arise, but submits that he would still like to argue the matter inasmuch as some arguments on the construction of the expression "account current" were never placed before the Benches in earlier decisions. 3.Learned Advocate has drawn our attention to the provisions of Rule 9 and Rule 173G (as it stood prior to 2000-2001) requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of the Tribunal, the prayer is to follow the same. 6.Considered the submissions made by both the sides. As per facts on record, the appellant, who was availing the facility to pay duty on fortnightly basis, was directed by his jurisdictional Deputy Commissioner, vide his letter dated 5-9-2000, to pay duty on consignment wise basis as on account of default by the appellant to discharge his duty liability by due date, the facility is withdrawn for a period of two months. During this period of two months, the appellant paid the duty on consignment wise basis but by debiting Cenvat Credit account instead of paying the same out of PLA or by cash. The Revenue's stand is that the rule in question requires the assessee to pay duty out of cur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by debiting such account current or by utilizing Cenvat Credit (emphasis provided.) As such, the said rule refers to two modes of payment of duty i.e. either by debiting account current or by utilizing credit leading to the conclusion that the reference is to two distinct, independent and identifiable accounts. Now when Rule 173G(1)(e) makes reference to only one such account in contradistinction to the two made in clause (b), it has to be necessarily concluded that out of the two modes referred in clause (b), only one has been intentionally chosen in clause (e). The said clause can be safely termed as more or less as penal clause providing penalty in the shape of withdrawal of facility of payment of duty on fortnightly basis in case of de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cenvat Credit separately. The expression has to be interpreted in the backdrop of its understanding in the particular field or branch of law in which it is issued. Bombay II Commissionarate Trade Notice No. 68/86, dated 10-12-1986 refers to the maintenance of PLA or RG 23A with adequate balance and states in Para 2 that it is clarified that sufficiency of balance in the account current will be decided keeping in view not only the balance in account current but also balance in RG 23A II. This reflects upon the understanding of use of term 'current account' in Central Excise Law. If the meaning of the two expressions is synonymous, the two would not have been used separately in the above Trade Notice and in fact, there was no occasion in that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... racting consequent interest and penal provisions. (a) G.K.W. Ltd. v. Commissioner of Central Excise - 2003 (156) E.L.T. 72 (Tri. -Kolkata) (b) Jayaswals Neco Ltd. v. Commissioner of Central Excise, Raipur - 2003 (158) E.L.T. 337 (T) = 2004 (60) R.L.T. 403 (Tri. -Del.) (c) Pioneer Alloy Casting Ltd. v. CCE, Chennai - 2004 (165) E.L.T. 421 (T) = 2004 (60) R.L.T. 558 (CESTAT - Chen.) Inasmuch as the issue also stands decided by the above decisions and in view of our discussions in the preceedings paragraph, we find no justifiable reasons to take a different view. 12.At this stage we may also take note of basis manual of departmental instructions issued vide F No. 202/93/81-CX. 6, dated 17-6-1982 appearing at page ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edited in the said account. 14.As regards interest and penalty, it has been argued before us that the provisions of Section 11AB and 11AC are applicable only in case of suppression, mis-statement etc. There being no such factors available in the instant case, inasmuch as duty payment from credit account having been reflected in the monthly return, the said sections cannot be invoked. It is seen that apart from invoking Section 11AC, penalty was also Imposed under Rule 173Q. Rule 173Q(1)(e) provides that in the event of failure to pay duty on consignment wise basis by debiting through account current, it will be deemed as if such goods have been cleared without payment of duty and consequences and penalties as provided in the Central Excis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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