2016 (8) TMI 238

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....led by the appellant. 2. The fact of the case is that the appellant defaulted the monthly payment of excise duty for the month of May,2005, August, 2005 and September, 2005 which was paid belatedly on 2/12/2006. The Asstt. Commissioner vide his order dated 21/12/2005 forfeited the facility of monthly payment of excise duty and utilization of Cenvat credit for the period of two months from the date of his order. The appellant during the period April, 2006 and May, 2006 paid duty from Cenvat account on monthly basis therefore show cause notice was issued proposing penalty under Rule 25 of Central Excise Rules, 2002. The Adjudicating authority while Adjudicating the show cause notice imposed penalty of Rs. 7,58,552/- under Rule 25(1) (a) of....

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....mits that Honble Gujarat High Court in the case of Indsur Global Ltd(supra) only decides only issue regarding the utilization of the Cenvat credit whereas the assesee is still required to pay duty on consignment basis and for this contravention appellant is liable for penalty. In support of his submission, he placed reliance on Shivam Pressings Vs. Commissioner of Central Excise, Pune-I[2015(326) ELT 351(Tri. Mumbai)]. 5. I have carefully considered the submissions made by both sides. 6. I find that this is a case of imposition of penalty under Rule 25 which is equal to the duty amount payable during the month of April and May, 2006. The penalty was imposed on the ground that the appellant during April and May 2006 cleared the goods ....

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....the Central Excise Act deals with penalty for short levy or non-levy of duty in certain cases. It says that where any duty of excise has not been levied or paid or has been short levied or short paid or erroneously refunded by reasons of fraud, collusion or any willful misstatement or suppression of facts, or contravention of any of the provisions of this Act or of the Rules made thereunder with intent to evade payment of duty, the person who is liable to pay duty as determined under sub-section (2) of Section 11AC, shall also be liable to pay a penalty equal to the duty so determined. For the purpose of invoking Section 11AC of the Act, the condition precedent is that the duty has not been levied, or paid or short-levied or short-paid or t....