2014 (1) TMI 263

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....f the next month. The assessee committed default for the months of February and March 2007, for which duty with interest was paid on the 20th and 21st of February 2008. Duty for the month of April 2007, though paid in due time, was not paid entirely from PLA. A major part of this duty was paid from PLA and the balance from CENVAT account, the latter amounting to Rs.75,726/- (BCD + education cess). The department found irregularity in the mode of payment of duty for the month of April 2007 with reference to Rule 8(3A), of the Central Excise Rules, 2002 and issued show cause notice dated 1/2/2008 to the assessee demanding the aforesaid amount of Rs.75,726/- under Section 11A(1) of the Central Excise Act read with Rule 14 of the CENVAT Credit ....

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....f the Central Excise Rules 2002. When this question came up before this Bench on the previous occasion, the learned counsel for the assessee cited Solar Chemferts Pvt. Ltd. vs. Commissioner of Central Excise, Thane-I [2012 (276) E.L.T. 273 (Tri-Mum)] in support of the view taken by the lower appellate authority. It was submitted that the issue was squarely covered by the cited decision. Today, the learned Superintendent (A.R.) relies on Godrej Hershey Ltd. vs Commissioner of Central Excise, Bhopal [2011 (263) E.L.T. 663 (Tri-Del)] and submits that this decision supports the department's appeal. As regards Solar Chemferts (supra), he fairly points out that the decision has been accepted by the department. This submission of the learned Super....

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.... is liable to be dismissed on merits. The Tribunal's decision in Godrej Hershey case was rendered on a different set of facts. That was a decision principally on the question whether sub-rule (3A) of Rule 8 was attracted in a case of partial default of duty for a given calendar month. In the instant case, the entire amount of duty for the period of default was apparently paid in full from PLA and, for the month of April 2007, the duty was paid within the prescribed time and hence there was no default. The only issue in the present case is whether the assessee should be directed to pay an amount equal to the CENVAT credit utilized by them for payment of duty for the month of April 2007. If they are made to pay so, without being granted refun....