TaxTMI 
TaxTMI 
2004 (4) TMI 137
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.... or is required to pay duty out of PLA and whether he would be liable to pay interest and penalty in case of payment of duty out of Cenvat Credit account during this period. 2.Learned Advocate, Shri V. Sridharan appearing for the appellants fairly agrees that there are number of decisions of the Tribunal holding that during the period of forfeiture of facility to pay on fortnightly basis, the duty is to be paid only from PLA and consequence of interest and penalty also arise, but submits that he would still like to argue the matter inasmuch as some arguments on the construction of the expression "account current" were never placed before the Benches in earlier decisions. 3.Learned Advocate has drawn our attention to the provisions of ....
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....e. The issue, having been settled by various precedent decisions of the Tribunal, the prayer is to follow the same. 6.Considered the submissions made by both the sides. As per facts on record, the appellant, who was availing the facility to pay duty on fortnightly basis, was directed by his jurisdictional Deputy Commissioner, vide his letter dated 5-9-2000, to pay duty on consignment wise basis as on account of default by the appellant to discharge his duty liability by due date, the facility is withdrawn for a period of two months. During this period of two months, the appellant paid the duty on consignment wise basis but by debiting Cenvat Credit account instead of paying the same out of PLA or by cash. The Revenue's stand is that the ....
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....eferred in clause (b) of Rule 173G(1) which is to the effect that the manufacturer shall maintain an account current with the Commissioner and shall discharge his duty liability by debiting such account current or by utilizing Cenvat Credit (emphasis provided.) As such, the said rule refers to two modes of payment of duty i.e. either by debiting account current or by utilizing credit leading to the conclusion that the reference is to two distinct, independent and identifiable accounts. Now when Rule 173G(1)(e) makes reference to only one such account in contradistinction to the two made in clause (b), it has to be necessarily concluded that out of the two modes referred in clause (b), only one has been intentionally chosen in clause (e). Th....
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....inctly used as referring to two different accounts. If current account is held to be wide enough to cover the Cenvat Credit account, then there was no need to use the expression Cenvat Credit separately. The expression has to be interpreted in the backdrop of its understanding in the particular field or branch of law in which it is issued. Bombay II Commissionarate Trade Notice No. 68/86, dated 10-12-1986 refers to the maintenance of PLA or RG 23A with adequate balance and states in Para 2 that it is clarified that sufficiency of balance in the account current will be decided keeping in view not only the balance in account current but also balance in RG 23A II. This reflects upon the understanding of use of term 'current account' in Central....
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....l in the following decision and it was held that payment of duty by debiting through Cenvat credit account during the period of forfeiture amounts to contravention of Rule 173G (1)(e) attracting consequent interest and penal provisions. (a) G.K.W. Ltd. v. Commissioner of Central Excise - 2003 (156) E.L.T. 72 (Tri. -Kolkata) (b) Jayaswals Neco Ltd. v. Commissioner of Central Excise, Raipur - 2003 (158) E.L.T. 337 (T) = 2004 (60) R.L.T. 403 (Tri. -Del.) (c) Pioneer Alloy Casting Ltd. v. CCE, Chennai - 2004 (165) E.L.T. 421 (T) = 2004 (60) R.L.T. 558 (CESTAT - Chen.) Inasmuch as the issue also stands decided....
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....sioner has confirmed the demand shows that the same was not paid by them. However, this being a factual dispute can be resolved at the original level in the light of our finding that duty was required to be paid through PLA and on doing so, the duty already paid through Cenvat account would get credited in the said account. 14.As regards interest and penalty, it has been argued before us that the provisions of Section 11AB and 11AC are applicable only in case of suppression, mis-statement etc. There being no such factors available in the instant case, inasmuch as duty payment from credit account having been reflected in the monthly return, the said sections cannot be invoked. It is seen that apart from invoking Section 11AC, penalty was ....