TaxTMI 
TaxTMI 
2021 (8) TMI 795
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....7/- H S Ed. Cess) raised in the show cause notice under Section 11A of the Act as it stands already paid and dispute in manner of payment not falling within purview of Sec 11 A of the Act. (iii) I order recovery of Interest under Section 11AB of the Central Excise Act, 1944 on default payment made for the month of Oct, 2009 till the date of actual payment of duty. I appropriate the amount already paid by the noticee on this count. (iv) I hereby impose penalty of Rs. 1,48,87,372/- on the Noticee under Rule 25 of Central Excise Rules, 2002 for contravention of provisions of Rule 4, 8(1), 8(3) & 8(3A) of the Central Excise Rules, 2002. 2.1 During the scrutiny of the ER-1 returns filed by the Appellant for the month of October 2009, it was observed that against total duty payable, for that month, amounting to Rs. 4,47,615/- appellant had paid and amount of Rs. 2,12,243/- by making debit entries in their CENVAT credit account, and had failed to pay the amount of Rs. 2,35,372/-, by the due date. The short payment made was made good subsequently by the payment made on 16.06.2010, 23.06.2010 and 15.07.2010. Thus there was delay of about 250 days from the due date in ma....
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....he demand has been made in show cause notice was challenged before the Hon'ble High Court, and Hon'ble High Court has vide its order in case of Indsur Global Ltd [2014 (310) ELT 833 (Guj)] held as follows: "18. In exercise of powers conferred under Section 37 of the Central Excise Act, 1944, the Central Government has framed the Central Excise Rules, 2002. Rule 4 of the said Rules pertains to duty payable on removal. Sub-rule (1) thereof provides that every person who produces or manufactures any excisable goods, or who stores such goods in a warehouse, shall pay the duty leviable on such goods in the manner provided in Rule 8 or under any other law, and no excisable goods, on which any duty is payable, shall be removed without payment of duty from any place where they are produced or manufactured or from a warehouse unless otherwise provided. Rule 5 of the Central Excise Rules, 2002, pertains to date of determination of duty and tariff valuation. Sub-rule (1) thereof provides the rate of duty or tariff value applicable to any excisable goods other than khandsari molasses shall be the rate or value in force on the date when such goods are removed from a factory or a wareho....
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....efore us, as it stood at the relevant time, reads as under : "If the assessee defaults in payment of duty beyond thirty days from the due date, as prescribed in sub-rule (1), then notwithstanding anything contained in said sub-rule (1) and sub-rule (4) of Rule 3 of CENVAT Credit Rules, 2004, the assessee shall, pay excise duty for each consignment at the time of removal, without utilizing the CENVAT credit till the date the assessee pays the outstanding amount including interest thereon and in the event of any failure, it shall be deemed that such goods have been cleared without payment of duty and the consequences and penalties as provided in these rules shall follow." As per this sub-rule, in case of an assessee who has defaulted in payment of duty beyond thirty days from the due date, has to pay excise duty for each consignment at the time of removal without utilizing the Cenvat credit till he pays the outstanding amount including interest. In the event of failure, it would be deemed that such goods have been cleared without payment of duty and the consequences and penalties as provided in the rules would follow. 20. We may record that sub-rule (3A) wh....
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....nding amount with interest at the rate specified by the Central Government under a notification. The period of computation of interest would be the first day after the due date till date of actual payment of the outstanding amount. 23. As noted, the Cenvat Credit Rules, 2004 permit an assessee liable to pay excise duty to avail Cenvat credit for such purpose on various duties paid on the inputs which may either be raw material or capital goods in the manner provided in the said rules. In this context, sub-rule (3A) of Rule 8 makes two fold departure in case of an assessee who has been unable to pay the duty by the due date and such default continues for a further period of 30 days from the due date. If an assessee who was required to pay the entire months of excise duty by the 5th or 6th of the following month, does not do so for a further period of 30 days, the unpleasant consequences envisaged in sub-rule (3A) would follow. Such consequences would be that he would no longer enjoy the facility of payment of excise duty on monthly basis and he would have to clear each consignment on actual payment of duty and secondly that he would not be entitled to avail of Cenvat credit....
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..... 3 (S.C.), the Supreme Court observed as under : "75. A piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. Subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. In addition it may also be questioned on the ground that it does not conform to the statute under which it is made. It may further be questioned on the ground that it is contrary to some other statute. That is because subordinate legislation must yield to plenary legislation. It may also be questioned on the ground that it is unreasonable, unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary. In England, the Judges would say "Parliament never intended authority to make such rules. They are unreasonable and ultra vires". The present position of law bearing on the above point is stated by Diplock L. J. in Mixnam. Properties Ltd. v. Chertsey U. D. C. - (1964) 1 QB 214 thus :- "The various grounds upon which subordinate legislation has sometimes been said to be void ............... can, I think, today be properly rega....
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....rovide for charging or payment of interest in the differential amount of duty which becomes payable or refundable upon finalisation of all or any class of provisional assessments; xxxx xxxx (xiiia) provide for withdrawal of facilities or imposition of restrictions (including restrictions on utilisation of CENVAT credit) on manufacturer or exporter or suspension of registration of dealer, for dealing with evasion of duty or misuse of CENVAT credit;" 27. According to Shri Parikh, when clause (xiiia) of sub-section (2) of Section 37 circumscribes the rule making power in case of evasion of duty, the sub-ordinate legislation cannot fall back on the general provisions of sub-section (1) of Section 37 and therefore, any power to frame sub-rule (3A) of Rule 8 must be seen to have been by necessary implication taken away. This contention, however, for various reasons cannot be accepted. Firstly clause (xiiia) was introduced in the statute with effect from 8-5-2010. Sub-rule (3A) of Rule 8 was introduced in the year 2006. No guidance, therefore, can be had from clause (xiiia) in the context of discretion of the power of the rule making authority under the....
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....ub-rule (3A) of Rule 8 recognizes two distinct and different classes of assessees. As long as an assessee abides by the time-frame provided in sub-rule (1) of Rule 8 and pays the duty monthly on 5th or 6th day of the month for the previous month, he does not incur any further liability. It is only when he not only misses the crucial date but is unable to or chooses not to pay the duty for another 30 days that sub-rule (3A) of Rule 8 would apply. In such a case, the facility of monthly payment and adjustment of Cenvat credit is taken away. The fact that two sets of assessees form different and distinct class identifiable and differentiated by intelligible differentia cannot be disputed. In one class, we have those assessees who complied with the requirements of the rules and made payment of excise duty by the due date and the other class forms of those assessees who missed the due date by at least 30 days. If the Legislature, therefore, treats these two distinct classes differently, this would certainly not a case of hostile discrimination. An assessee who for whatever reasons is unable to pay the duty within the time prescribed by the statute cannot complain of being differently tr....
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....evant 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 been taken; (d) taking of CENVAT credit on invoices or other documents which a person has reasons to believe as not genuine; (e) issue of excise duty invoice without delivery of goods specified in the said invoice; ....
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....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 credit could not have been utilized for payment of the excise duty on any other product, the unutilised credit was getting accumulated. For the utilization of the credit, all vestitive facts or nec....
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....o 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 extend 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 impossible for an assessee who is trapped in the whirlpool to get out of his financial difficulties. This is quite apart from being wholly reasonable, being irrational and....