2018 (6) TMI 1347 - AT - Central Excise

Constitutional Validity of Rule 8(3A) of the CER 2002 - restriction on payment of excise duty without availing CENVAT credit - case of Revenue is that the department has filed an appeal before the Apex Court and the matter is pending before the Apex Court for final decision regarding the constitutional validity of Rule 8 (3A) of the CENVAT Rules - Held that - The Division Bench of the Delhi Tribunal in the case of Weldon Cello Plast Ltd vs. CCE Delhi IV 2013 (3) TMI 386 - CESTAT NEW DELHI have also followed the other High Courts and held that the ratios of the decision is still binding and therefore Division Bench held that payment through CENVAT credit is not bad in law - appeal allowed - decided in favor of appellant.

Summary

Issues:
- Appeal against order rejecting appellant's appeal but dropping penalty under Rule 25 of Central Excise Rule.
- Constitutional validity of Rule 8(3A) of Central Excise Rules.
- Applicability of CENVAT credit for payment of excise duty.
- Precedents set by various High Courts and Tribunals regarding Rule 8(3A).

Analysis:
1. Appeal against order: The appellant, engaged in manufacturing excisable goods, was found to have defaulted in payment of duties for specific months. The Lower Authority confirmed the demand and imposed penalties, which were later dropped under Rule 25 by the Commissioner. The appellant challenged this decision, arguing that the order was unsustainable in law and contrary to judicial precedents.

2. Constitutional validity of Rule 8(3A): The appellant contended that Rule 8(3A) was declared unconstitutional by the Hon'ble High Court of Gujarat, as it imposed unreasonable restrictions on paying excise duty without availing CENVAT credit. Citing various cases, it was argued that the provision preventing the use of CENVAT credit for duty payment was arbitrary and violated constitutional rights.

3. Applicability of CENVAT credit: The appellant relied on precedents where it was established that utilizing CENVAT credit for duty payment was not a violation of Rule 8(3A). The Division Bench of the Delhi Tribunal also supported this view, emphasizing that payment through CENVAT credit was legally permissible.

4. Precedents by High Courts and Tribunals: The Tribunal noted that other High Courts had followed the decision of the Hon'ble Gujarat High Court regarding the use of CENVAT credit for duty payment. Rulings from various courts and tribunals supported the appellant's argument that the impugned order was not sustainable in law.

In conclusion, the Tribunal set aside the impugned order, allowing the appeal of the appellant based on the legal arguments presented, the constitutional validity of Rule 8(3A), and the established precedents supporting the use of CENVAT credit for duty payment.