2015 (11) TMI 460

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....pellant was rejected. 2. The fact of the present case is that the appellant engaged in the manufacture of various excisable goods. On scrutiny of the ER-1 return filed by the appellant for the May 2007, it was noticed that appellant failed to pay Central Excise duty amounting to Rs. 4,98,859/- by 5th of succeeding month as prescribed under Rule 8 of Central Excise Rules, 2002. The outstanding payment of duty in respect of clearances affected in the month of May, 2007 was discharged on 27/8/2007 alongwith interest of Rs. 14, 411/- beyond the period of 30 days. Default in payment of Central Excise duty continued in month of June 2007 to July 2007. In both the instances duty was paid on 19/9/2007 and 15/10/2007 respectively i.e. after lapse o....

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....penalty of Rs. 6,87,714/- and 5,64,855/- (Total of Rs. 12,52,569) on them under the provisions of Rule 25(1) (a) of the Central Excise Rules, 2002 read with Section 11AC of the Central Excise Act, 1944 provided that the benefit of reduced penalty as per proviso 2 to Section 11AC of the Central Excise Act, 1944 shall be available to the assessee if the amount of penalty so determined is paid within the period of thirty days from the communication of this order. Aggrieved by the said order the appellant filed appeal before the Commissioner (Appeals), who upheld the order of the adjudicating authority and rejected the appeal of the appellant, hence the appellant is before me. In the present appeal, appellant is contesting only imposition of p....

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....ises. He further submits that since all clearances were made under cover of duty paying invoices and the clearances were declared in ER-1 return, there is no malafide and suppression on the part of the appellant. This is only a case of delay in making payment of duty, details of which are disclosed to the department therefore penalty under Section 11AC should not have been imposed. 4. Shri. N. N. Prabhudesai, Ld. Superintendent (A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. He further submits that as per Rule 8 of Central Excise Rules, 2002, it is statutory provision that if assessee fails to pay duty within due date and if it is paid belatedly beyond the 30 days from the due date, then the clearan....

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....iew, applicants case is squarely covered by sub section (2B) of Section 11AC which is reproduced below: (2B) Where any duty of excise has not been levied or paid or has been short-levied or short paid or erroneously refunded, the person, chargeable with the duty, may pay the amount of duty on the basis of his own ascertainment of such duty or on the basis of duty ascertained by the a Central Excise Officer before service of notice on him under sub-section (1) in respect of the duty, and inform the Central Excise Officer of such payment in writing, who, on receipt of such information shall not serve any notice under sub-section (1) in respect of the duty so paid In view of the above sub section (2B) of Section 11AC, if there is short pay....