Per K.K. Agarwal : The brief facts of the case are that the respondents were availing SSI exemption and paying the duty on monthly basis by the 15th of the succeeding month. It was observed that they have failed to discharge the duty twice on due dates. Therefore the facility for payment of duty on monthly basis was suspended by the divisional Assistant Commissioner and the assessee was directed to discharge the duty liability on consignment basis till such date when all dues were paid. The assessee was required to remove the goods on payment of duty for each consignment by debiting the same from account current only during the period 14.06.2001 to 14.08.2001. However the respondents paid the duty by debiting the Cenvat credit account. Therefore the Show Cause Notice was issued to the respondents demanding Rs. 65,092/ - for contravention of the erstwhile Rule 173G (1) (e) (d) as the clearances during the period were deemed to have been made without payment of duty. The demand was confirmed by the Assistant Commissioner who also impose a penalty of Rs. 5,000/-. However on appeal, the order was set aside by the Commissioner (Appeals) on the ground that there was no provisions