2013 (3) TMI 386

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.... 2010 till 30-4-2010 along with interest for the period of delay without attracting penalty, they paid the duty for the month of March 2010 along with interest only on 18-5-2010. The Department was of the view that since the appellant failed to pay the duty till 30-4-2010 along with interest, the provisions of Rule 8(3A) would get attracted from 1-5-2010. Rule 8(3A) of the Central Excise Rules, 2002, provides that "If an assessee defaults in payment of duty beyond 30 days from the due date, as prescribed in sub-rule (1), then notwithstanding anything contained in said sub-rule (1) and sub-rule (4) of Rule 3 of CENVAT Credit Rules, 2004, the assessee shall pay excise duty for each consignment at the time of removal, without utilizing the Cen....

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....entral Excise Rules, 2002. 3. Heard both the sides. 4. Shri Ravinder Kumar, Advocate, the ld. Counsel for the appellant, pleaded that the only offence alleged against the appellant is that for the period from 1-5-2010 to 17-5-2010, they did not pay duty consignment wise which was required under Rule 8(3A) of Central Excise Rules, 2002; that for this offence only the penalty under Rule 27 of the Central Excise Rules can be imposed for which the upper limit is Rs. 5,000/-, that in this regard he relies upon the judgment of the Hon'ble High court of Gujarat in the case of C.C.E. v. Saurashtra Cement Ltd. reported in 2010 (260) E.L.T. 71 (Guj.); that the same view has been taken by the Tribunal in the case of Solar Chemferts Pvt. Lt....

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....oval of excisable goods in contravention of the Central Excise Rules. He, therefore, pleaded that penalty has been correctly imposed under Rule 25. On the point of non-mention of sub-rule (1) of Rule 25, he pleaded that this would not vitiate the show cause notice which clearly indicates the contravention which attract penalty under Rule 25(1) of Central Excise Rules, 2002. He, therefore, pleaded that there is no infirmity in the impugned order. 6. I have considered the submissions from both sides and perused the record. The appellant had defaulted in payment for the month of March 2010. While duty for March 2010 was required to be paid by 31-3-2010, this duty due was finally paid on 18-5-2010 along with interest. Rule 8(3) provides t....

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....ax administration and avoiding administrative inconveniences strict interpretation of the provisions of Rule 83(A) is necessary. From this provision it is clear that if during forfeiture period, the duty due is not paid consignment wise and through PLA the clearances of goods made shall be deemed to have been made without payment of duty and consequences and penalties as provided in this rules shall follow. Thus, Rule 8(3A) provides a legal fiction according to which failure to pay duty consignment wise and only through PLA during the forfeiture period would be deemed to be effecting clearances without payment of duty. It is well settled law that a legal fiction has been taken to its logical conclusion. Since in this case during the forfeit....