TaxTMI 
TaxTMI 
2013 (8) TMI 790
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....amount of CENVAT credit found to have been irregularly utilized during the above period towards payment of duty on the aforesaid goods. As the assessee had paid an amount of Rs.3,22,434/- prior to issue of the show-cause notice, the same was appropriated towards the demand at Sl.No.i above and the assessee was directed to pay the differential amount of Rs.1,209/-. The amount of interest paid prior to issue of the show-cause notice was also appropriated towards demand of interest on duty under Section 11AB of the Central Excise Act. 3. The demand of interest on duty was made under Section 11AB of the Central Excise Act and the demand of interest on the CENVAT credit amount was made under Rule 14 of the CENVAT Credit Rules, 2004. 4. The....
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....d in three installments (26/06/2009, 29/06/2009 and 04/07/2009) towards duty for the aforesaid period, i.e. before issue of the show-cause notice. iii. Interest on the above duty was also paid likewise in three instalments prior to issue of the show-cause notice. iv. For a period subsequent to 5th January, 2009 (the last date of the grace period for the month of November 2008), the assessee utilized CENVAT credit of Rs.1,69,765/- for payment of duty on clearances of goods effected consignmentwise, which was contrary to Rs.8(3A) of the Central Excise Rules 2002. v. In the monthly ER1 returns filed by the assessee for the aforesaid period (November 2008 to May 2009), the duty payments were shown as payments from the account current w....
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.... and the penal consequences shall follow. These provisions being very clear, it is a forgone conclusion that the demand of Rs.1,69,765/- being the amount of CENVAT credit illegally utilized for payment of duty by the assessee on the goods cleared after 5th January 2009 represents an amount of duty not paid. In other words, the demand of the said amount is a correct demand under Section 11A of the Central Excise Act read with Rule 14 of the CENVAT Credit Rules 2004. The challenge against this demand fails. 10. If there is a hotly contested issue in this case, it is none other than the penalty-related issue. The learned counsel for the appellant has argued that Section 11AC was wrongly invoked in this case for imposing a penalty equal to t....
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....he relevant ER1 returns, made entries to the effect that the duty was paid and, that too, from the account current. The returns were filed from time to time but without any payment of duty. This conduct of the assessee definitely invited the provisions of Section 11AC as well as Section 11A. The show-cause notice in this case clearly alleged the above conduct of the assessee, but there was no satisfactory reply to that allegation. It appears, the assessee has chosen to live up to the case of the Department only before the appellate authority. Be that as it may, I hold that Section 11AC was rightly invoked in this case to impose on the assessee a penalty equal to the duty demanded for the period from November 2008 to May 2009. It is nobody's....
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....edit for the period after 5th January 2009. This clearly discloses mis-statement of a crucial fact by the party. The intent behind this conduct is self-evident. Such utilization of CENVAT credit was in clear breach of Rule 8(3A) of the Central Excise Rules, 2002. The intent to evade payment of duty in the prescribed manner is common to both the above ingredients viz. wilful mis-statement of facts and contravention of a rule. Rule 15(2) clearly provides that, in such situations, the manufacturer shall also be liable to pay penalty in terms of provisions of Section 11AC of the Act. Therefore, the appellant has failed to substantiate their case against the penalty imposed on them under Rule 15(2) read with Section 11AC. 12. Certain decision....