ORDER
P.S. Bajaj, Member (J)
1. In this appeal, the Revenue has made challenge to the impugned order vide which the adjudicating authority has failed to confirm the duty demand as per the terms of the show cause notice, but only ordered that the Asstt. Commissioner’s order dated 31-8-2001 regarding the duty and penalty would be followed.
2. The ld. SDR has contended that the Asstt. Commissioner earlier passed the order by exercising the powers conferred vide Rule 8(4) of the Central Excise (No. 2), Rules, 2001 as there was a default by making a payment of duty by the respondents during the fortnight ending 31-10-2000 and as per that order, the respondents were liable to pay the duty from the account current for two months from the date of the order, winch is 29-8-2001, but they failed to discharge the duty liability in terms of this order and rather paid the same from RG 23, therefore, clearances made by the respondents during the months of September and October, 2001, in terms of the said order of the Asstt. Commissioner, have to be treated without payment of duty and as such the adjudicating authority was duty bound to confirm the duty with interest and penalty thereon.
3. On the other hand, ld. Counsel has reiterated the correctness of the impugned order and contended that after the fortnight ending 31-10-2000, duty was paid through the account current and as such, the respondents complied with the terms of the order of the Asstt. Commissioner. He has further contended that payment of duty from RG 23 thereafter during the months of September-October, 2001, did not amount to non-payment of duty by the respondents and that the respondents even otherwise if had paid the duty from the account current, would have got the credit also. It is a case, according to the ld. SDR, of revenue neutral. In the alternative, the Counsel has also contended that the respondents should also be allowed to take the re-credit of the duty amount paid from the RG 23, in case they are to be directed to pay the duty from the account current.
4. We have heard both the sides and gone through the records.
5. The facts are not much in dispute. From the date of passing of the order by the Asstt. Commissioner, the respondents were legally duty bound to pay the duty from the account current for the two months i.e. September, 2001 and October, 2001 as the said the order was passed on 31-8-2001, as is evident from the bare reading of Rule 8(4) of the Central Excise Rules. The respondents could not pay the duty from RG 23. But they still paid the duty from RG 23 and as such this payment cannot be equated with the payment from the account current in the terms of the above said rule. That being so, they are liable to pay the duty from the account current for these two months along with interest, as per rules.
6. However, since they had debited the duty amount in dispute from the RG 23, they will be entitled to re-credit the same in the record. For having defaulted in payment of the duty in terms of Rule 8(4) of the Act, the penalty of Rs. 20,000/- is also imposed on the respondents.
7. In the light of the above discussion, the appeal of the Revenue accordingly stands allowed. The cross-objections of the respondents also stand disposed of.
Order dictated & pronounced in open Court on 10-3-2005.