THE HONOURABLE SRI JUSTICE GODA RAGHURAM AND THE HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO CEA No. 108 of 2011 Dated: 19-10-2012 Between: The Commissioner of Customs, Central Excise and Service Tax, Hyderabad-III Commissionerate. …Appellant And M/s Resource Technology (P) Ltd., rep. by its Managing Director, Hyderabad. …Respondent. THE HONOURABLE SRI JUSTICE GODA RAGHURAM AND THE HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO CEA No. 108 of 2011 Judgment (Per Hon’ble Sri Justice Goda Raghuram) No question of law let alone a substantial question of law arises for consideration in this appeal preferred by the Revenue under Section 35G of the Central Excise Act, 1944 against the order of the CESTAT, Bangalore Bench dated 11-2-2011 in Final Order No. 112/2011 in Appeal No. E/344/2010. The respondent allegedly defaulted in payment of duty for of May and June, 2007 but had paid the same on 24-8-2007 along with interest on delayed payment, which was paid on 18-9-2007. The Assessing authority noticed that the respondent-assessee had utilized Cenvat credit for the subsequent period during the defaulted period and issued a show-cause notice proposing a duty demand of Rs.4,09,883/- under provisions of Section 11A of the Central Excise Act, 1944 read with Rule 8(3) of the Central Excise Rules, 2002. The Adjudicating authority confirmed the duty demand and also imposed penalty of Rs.5,000/- under Rule 27 of the 2002 Rules, for contravention of Rule 8 (3A). Aggrieved, the assessee preferred an appeal before the Commissioner (Appeals). The Appellate authority duly considering the provisions of Rule 8 (3A) concluded that the appellant had correctly paid duty even during the defaulted period and consequently set aside the demand of duty, as the amount was paid along with interest but upheld the penalty imposed. The assessee did not prefer any appeal against the imposition of penalty. The Revenue carried the matter in appeal to the CESTAT against the order of the Commissioner setting aside the demand of duty imposed by the Assessing authority/Adjudicating authority. The Tribunal concurred with the Commissioner (Appeals) by finding that the assesee had utilized the Cenvat credit for payment of duty on the goods removed during July, August, and September, 2007; that there was no dispute with regard to utilization of credits within the alleged limit; that there was no dispute that the credits were utilized for the subsequent periods during the defaulted period; and that the Commissioner had followed the precedents in Lloyds Steel Industries Ltd. (2005 (183) ELT 351 (Bom.)), Heavy Engineering Corporation Ltd. (2008 (230) ELT 179 (Tri.-Kolkata)) and MM Silk Mills (2007 (211) ELT 78 (Tri.-Mumbai)), for the appellate conclusion. In the circumstances above, no substantial question of law arises for consideration. The appeal is accordingly dismissed. No costs. _________________________ GODA RAGHURAM, J 19th October, 2012 _______________________________ M.S.RAMACHANDRA RAO, J GRR