2015 (5) TMI 59

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.... appellants duty liability as self assessed by them and declared by them in their ER-I Return filed by them was Rs. 1,29,941/-. The appellant, however, did not pay its duty though the duty payable has been declared in the ER-I Return.  However, at that time they had sufficient cenvat credit balance in their cenvat credit account and ER-I return, also mentions cenvat credit available to them.  According to the appellant non-payment of duty was due to clerical mistake. This non-payment was subsequently pointed out by the Jurisdictional Superintendent, Central Excise in February, 2011 and at that time they immediately paid this amount by debiting the cenvat credit account. However, while doing so, they forgot to pay the interest of ....

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....epartment issued show cause notice dated 02.09.2013 seeking the recovery of the entire duty through PLA alongwith interest and imposition of penalty under section 25 (1) of the Central Excise Rules. Both the show cause notices were adjudicated by the Commissioner vide order-in-original dated 21.02.2014 by which, he confirmed the above mentioned duty demands of Rs. 52,00,199 and Rs. 69,91,429/- alongwith interest and imposed equal amount of penalty under Rule 25 (1) of the Central Excise Rules. By this order, the amount which has been paid through PLA was ordered to be appropriated. Against this order of the Commissioner this appeal has been filed alongwith stay application. 2. Heard both the sides in respect of the stay application. 3. Sh....

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....ng the cenvat credit. He pleaded that since the provision of Rule 8 (3A) invoked by the Department have been declared as unconstitutional by Honble Gujarat High Court the impugned order itself is not sustainable, and hence requirement of pre-deposit may be duty demand, interest, and penalty may be waived for hearing of the appeal and recovery thereof may be stayed. 4. Shri Yashpal Sharmai, the ld. DR opposed the stay application by reiterating the findings of the Commissioner and relied upon the judgment of Honble Madras High Court in the case of Unirols Airtex vs. Assistant Commr. of C.Ex. Coimbatore reported in 2013-TIOL-684 H.C. Mad.-Cx. 5. We have considered the submissions from both the sides and perused the records. Firstly, we ar....