TaxTMI 
TaxTMI 
2016 (5) TMI 746
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....e due date Total amount of duty paid from (PLA+CENVAT) on the due date Amt. of duty not paid on due date i.e. 5th or 6th of the following month Due date of payment of duty alongwith interest Amount of duty paid subsequent to due date Amt. of duty not paid till date 1 2 3 4 5 6 7 8 9 Jan.2012 3,93,892 (382420+7649+3823) 0 2,22,834 (2,16,545+4194+2095) 2,22,834 (2,16545+4194+2095) 1,71,058 (1,65875+3455+1728) 04.03.12 1,39,784 (135029+3162+1593) on 10.03.12 alongwith the interest of Rs. 2758 31,274 (30,846+293+135) Feb.2012 5,08,397 0 2,63,793 2,63,793 2,44,605 04.03.12 2,44,605 On 23.03.12 alongwith the interest of Rs. 3010 0 2.1 It appeared to revenue that the appellant could not have utilised the Cenvat credit as provided under Rule 8 (3A) of CER and accordingly, wa....
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....edings, In such cases between such non-payment having been occasioned due to fraud, collusion, etc., in which case a longer period of limitation is available as against rest of the cases. Likewise, under Rule 12CC of the Central Excise Rules as it stood at the relevant time, power was given to the Government by notification to withdraw facilities from the manufacturers, registered dealers or exporters under certain circumstances having regard to the extent of evasion of duty, nature and type of offences or such other factors as has been relevant. In exercise of such powers, Notification No. 17/2006 was issued providing for withdrawal of facilities and for imposition of restrictions against who are prima facie found to be knowingly involved in any of the following: "(a) removal of goods without the cover of an invoice and without payment of duty; (b) removal of goods without declaring the correct value for payment of duty, where a portion of sale price, in excess of invoice price, is received by him or on his behalf but not accounted for in the books of account; (c) taking of CENVAT credit without the receipt of goods specified in the document based on which the said credit has b....
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....ses a wholly unreasonable restriction which is not commensurate with the wrong sought to be remedied. 31. This extreme hardship is not the only element of unreasonableness of this provision. It essentially prevents an assessee from availing Cenvat credit of the duty already paid and thereby suspends, if not withdraws, his right to take credit of the duty already paid to the Government. It is true that such a provision is made because of peculiar circumstances the assessee lands himself in. However, when such provision makes no distinction between a willful defaulter and the rest, we must view its reasonableness in the background of an ordinary assessee who would be hit and targeted by such a provision. As held by the Supreme Court in the case of Eicher Motors Ltd. (supra) an assessee would be entitled to take credit of input already used by the manufacturer in the final product. In the said case, the Supreme Court was dealing with Rule 57F which was introduced in the Central Excise Rules, 1944 under which credit lying unutilized in the Modvat credit account of an assessee on 16th March, 1995 would lapse. Such provision was questioned. The Supreme Court held that since excess credi....
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....ly by legislation. In cases where such legislation is made and the restrictions are reasonable yet, if the concerned statute permitted the administrative authorities to exercise power or discretion while imposing restrictions in individual situations, question frequently arises whether a wrong choice is made by the Administrator for imposing restriction or whether the Administrator has not properly balanced the fundamental right and the need for the restriction or whether he has imposed the least of the restrictions or the reasonable quantum of restriction etc. In such cases, the administrative action in our country, in our view, has to be tested on the principle of 'proportionality,' just as it is done in the case of the main legislation. This, in fact, is being done by our Courts." 34. By no stretch of imagination, the restriction imposed under sub-rule (3A) of Rule 8 to the extent it requires a defaulter irrespective of its extent, nature and reason for the default to pay the excise duty without availing Cenvat credit to his account can be stated to be a reasonable restriction. It leads to a situation so harsh and a position so unenviable that it would be virtually impo....