2023 (4) TMI 1192

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....e dispute in the present Appeal is that the Appellants have made default in payment of duty for the month of November 2009 on the due date i.e. 05.12.2009. In the grounds of Appeal, the Appellants have stated that the said amount was later made good by making payment in cash. 3. The Appellant is engaged in the manufacture of Transformer Oil (Servo electra) on behalf of M/s. Indian Oil Corporation Ltd. The main raw materials like Base Oil (Crude Oil), Additives, Barrels (Packing Material) etc. are supplied by M/s. IOC on which duty at the appropriate rate have already been paid. The Appellant undertakes the processing to convert the Base Oil into Transformer Oil and after packaging, the said finished products are supplied entirely to M/s. I....

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....fault in paying of duty. M/s. IOC issued a cheque dated 22.01.2009 and the balance amount of Rs. 4,28,029.00 was debited on 30.01.2009 vide entry Sl.No.16 in the PLA along with interest amounting to Rs. 4,574.00. However, because of genuine clerical mistake in interest calculation, the interest liability was worked out at Rs. 4,574.00 instead of the actual amount of Rs. 8,447.00. The Appellant deposited the differential interest amounting to Rs. 4,114.00 by debit in the PLA on 14.12.2009. For this genuine and unfortunate mistake of paying a small amount of interest, the Appellant have been made liable for payment of huge amount of duty of Rs. 92,09,289.00 and penalty of equal amount by very strict and narrow interpretation of Sub-Rule (3A) ....

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....ferential interest of meager amount of Rs. 4,114.00. 6. The Appellant submits that if at all the less payment of interest due to calculation mistake occurred, the same cannot be equated with default in making payment of duty because 'default' is a positive act and is totally different from unintentional less payment because of genuine calculation mistake. It is therefore submitted that in the present situation, Sub-Rule (3A) of Rule 8 of the said Rules cannot be applied for the period after 30/01/2009. It is also submitted that if the Appellant is made to pay duty for the clearances effected during 12/01/2009 to 31/01/2009 (it may be mentioned that there was no clearance during the period from 15/12/2008 to 11/01/2009) for each consignment....

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....ER-I return for the month of November' 2008 submitted within the due date. Further the fact that the amount along with the interest paid on 30/01/2009 has also been disclosed in the monthly ER-I return pertaining to the period of January' 2009. Therefore, it is totally illogical and improper to allege suppression of fact or willful misstatement so as to invoke the extended time limit of the proviso clause of Section 11A of the said Act. The present show cause notice issued after the expiry of fourteen months from the relevant date is not sustainable on the ground of time bar. The Appellant submitted the following case laws in support of their contention:- (i) CCE Vs. Vapi Paper Mills Ltd. [2009 (234) ELT 538] (ii) Ventex Syntex Pvt.Ltd.....