- (1.) We have heard Sri A.P. Mathur, the learned counsel for the petitioner, and Sri Amit Mahajan who has appeared for the respondent and has filed his appearance slip today. No counter affidavit has been filed even though the petition was admitted eight years back. The petitioner is aggrieved by the order dated 20th January, 2006 by which the Assistant Commissioner, Central Excise Division-4, Noida has directed the petitioner to pay excise duty including education cess on each consignment, at the time of removal of the goods, for a period of two months, starting from the date of the receipt of the order.
(2.) The facts leading to the filing of the writ petition is, that the petitioner is engaged in the manufacture of soles and heels falling under Chapter 64 of the Central Excise Tariff Act, 1985. The central excise duty is required to be paid as per provision of Rule 8 of the Central Excise Rules, 2002. For facility, the said Rule 8 is extracted hereinunder: Rule 8 Manner of Payment - (1) The duty on the goods removed from the factory or the warehouse during a month shall be paid by the 5th day of the following month: Provided that in case of goods removed during the month of March, the duty shall be paid by the 31st day of March: Provided further that where an assessee is availing of the exemption under a notification based on the value of clearances in a financial year, the duty on goods cleared during a calendar month shall be paid by the 15th day of the following month except in case of goods removed during the month of March for which the duty shall be paid by the 31st day of March. Explanation:- For the purposes of this rule (a) the duty liability shall be deemed to have been discharged only if the amount payable is credited to the account of the Central Government by the specified date; (b) if the assessee deposits the duty by cheque, the date of presentation of the cheque in the bank designated by the Central Board of Excise and Customs for this purpose shall be deemed to be the date on which the duty has been paid subject to realization of that cheque. (1A) Notwithstanding anything contained in sub-rule (1), the duty on the goods removed from the factory or the warehouse, in the State of Gujarat, during the second fortnight of February, 2002 and the month of March, 2002 shall be paid by the 31st March, 2002: Provided that where an assessee in the State of Gujarat is availing of the ex-emption under a notification based on the value of clearances in a financial year, the duty on goods cleared during the month of February, 2002 shall be paid by the 31st March, 2002. Explanation.-For removal of doubts, it is hereby clarified that the duty liability shall be deemed to have been discharged only if the amount payable is credited to the account of the Central Government by the specified date. (2) The duty of excise shall be deemed to have been paid for the purposes of these rules on the excisable goods removed in the manner provided under sub-rule (1) and the credit of such duty allowed, as provided by or under any rule. (3) If the assessee fails to pay the amount of duty by due date, he shall be liable to pay the outstanding amount along with interest at the rate specified by the Central Government vide notification under Section 11AB of the Act on the outstanding amount, for the period starting with the first day after due date till the date of actual payment of the outstanding amount. (3A) If the assessee defaults in payment of duty by the date prescribed in sub-rule (2) and the same is discharged beyond a period of thirty days from the said date, then the assessee shall forfeit the facility to pay the duty in monthly installments under sub-rule (1) for a period of two months, starting from the date of communication of the order passed by the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, in this regard or till such date on which all dues including interest thereof are paid, whichever is later, and during this period notwithstanding anything contained in sub-rule (4) of Rule 3 of Cenvat Credit Rules, 2004, the assessee shall be required to pay excise duty for each consignment by debit to the account current 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. (4) The provisions of Section 11 of the Act shall be applicable for recovery of the duty assessed under Rule 6 and the interest under sub-rule (3) in the same manner as they are applicable for recovery of any duty or other sums payable to the central Government.
(3.) Under this Rule the excise duty is required to be paid on the 5th day of the following month. If the same is not paid, interest is levied and under Rule (3) the outstanding amount along with interest as per rates specified by the central government can be paid on or before the 30th day from the due date. Under Rule 8(3A) of the Rules, if the amount along with interest is not paid on or before 30 days from the date of due date, the assessee forfeits the facilities to pay the duty in monthly installments and would be required to pay the amount of duty on consignment basis for a period of two months from the date the order is passed by the Assistant Commissioner, Central Excise.;