TaxTMI 
TaxTMI 
2014 (12) TMI 906
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....as confirmed a demand of Rs. 4,57,25,70,950/- against the appellant, along with interest, and also imposed equivalent penalty under Rule 25 of the Central Excise Rules, 2002 read with Section 11AC of the Central Excise Act, 1944. 2. Shri V.K. Jain (Advocate) and Ms. Dimple Gohil (Advocate) appeared on behalf of the appellant. Learned advocate Shri V.K. Jain argued that the demand has been raised for short payment of Rs. 4,798/- and Rs. 1,360/- (Total Rs. 6,158/-) respectively for the month of March and April 2011. That vide letter dated 25.7.2011 and 30.09.2011 appellant intimated to the department that due to calculation mistake there was short payment and that the same is paid by them along with interest for late payment. That department....
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....(b) Alok Enterprises vs. CCE, Mumbai -[2014-TIOL-2008-CESTAT-MUM] (c) T.B. Mangharam Foods Private Limited vs. CCE, Indore - [2012 (285) ELT 384 (Tri. Del.)] 2.1 Learned advocate also made the bench go through Rule 8(3A) of the Central Excise Rules, 2002 and emphasised that this Rule does not talk of 'duty payable' but talk of 'duty' which should mean duty as assessed by an assessee. It was his case that there was no default in the payment of duty as assessed by appellant. That duty short paid due to a calculation error was only to the extent of Rs. 6,158/- and cannot be considered as default in payment when the same was made good by self detection and there was sufficient balance in appell....
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...., therefore, demands have been correctly confirmed against the appellant. 4. Heard both sides and perused the case records. The issue involved in the present proceedings is whether due to a calculation error, amounting to a short payment of Rs. 6,158/-, appellant can be slapped with a demand of approximately Rs. 457 Crores, along with interest and an equivalent amount of penalty. According to Revenue short payment of Rs. 6,158/- is a case of default under Rule 8(3A) as upheld by CESTAT Delhi in the case of Godrej Hershey Limited vs. CCE, Bhopal (supra). 4.1 Rule 8(3A) of the Central Excise Rules, 2002 is relevant and is reproduced below:- RULE 8. M....
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...., not paid or escaped the Self Assessment, necessary action should be taken to recover the duty in accordance with Section 11A of the Act. Similarly in case of excess payment by the assessee, they can file the refund claim. The relevant date for such refund should be continued to be computed as provided in Section 11B of the Act. 4.3 From the above legal provisions it is observed that field formations are required to take recovery action under Section 11A of the Central Excise Act, 1944 if there is any calculation error and rate of duty difference. If a short calculation of duty is attributed to be a default of Rule 8(3A) of the Central Excise Rules, 2002 then every short payment paid on being pointed out by department, or suo-moto by an a....
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....s order, in the case of Baman and Berry Bearing Private Limited vs. UOI (supra), will be applicable even if the act of the appellant is considered as default of Rule 8(3A) because law does not care for trifles (Lex non curat de minimis). 4.4 Learned AR has placed reliance on the judgment of CESTAT Delhi in the case of Godrej Hershey Limited vs. CCE (supra) wherein it has been held that any omission on the part of an assessee if leads to short payment will be a case of default. We respectfully differ with the views expressed by CESTAT Delhi as this interpretation will lead to chaos and will not be implementable as narrated in Para 4.3 above. In our opinion the default of Rule 8(3A) will take place only for non payment of duty as assessed o....