2016 (5) TMI 838 - AT - Central Excise

Demand of duty and interest thereon - Contravention of provisions of Rule 8(3A) - Duty paid through Cenvat credit - Held that - by following the judgment of Hon ble High Court of Gujarat in the case of Indsur Global Ltd. Vs. Union of India 2014 (12) TMI 585 - GUJARAT HIGH COURT where it was held that the Rule 8(3A) is unconstitutional and shall be rendered invalid. Therefore the impugned order is not sustainable and set aside. Imposition of penalty - Rule 25 of the Central Excise Rules - Held that - the penalty can only be imposed on the appellant under Rule 27 of the Central Excise Rules and accordingly I impose a penalty of 5, 000/- (Rupees Five Thousand only) on the appellant for violation of the procedures contained in the Rules. - Decided partly in favour of appellant

Summary

Issues:
1. Duty demand utilizing cenvat credit during default period.
2. Constitutionality of Rule 8(3A) of Central Excise Rules.
3. Imposition of penalty under Rule 25 of Central Excise Rules.

Analysis:

Issue 1: Duty demand utilizing cenvat credit during default period
The case involved the appellant, engaged in manufacturing Hydraulic Cylinders, who utilized cenvat credit for duty payment during a default period. The Assistant Commissioner held the appellant contravened Rule 8(3A) of Central Excise Rules, demanding duty of ?1,70,368/- along with interest and penalty. The Commissioner (Appeals) upheld the duty demand but reduced the penalty to ?55,000/-. The appellant argued they rectified the default by paying the duty with interest and referred to legal challenges against Rule 8(3A) in other cases. The Tribunal, considering the legal challenges, set aside the duty demand and interest, concluding the impugned order was unsustainable in law.

Issue 2: Constitutionality of Rule 8(3A) of Central Excise Rules
The appellant contested the constitutionality of Rule 8(3A) citing judgments from the Hon'ble Gujarat High Court declaring the portion of the rule regarding duty payment without utilizing cenvat credit as unconstitutional. The Tribunal, following the High Court's judgment, declared Rule 8(3A) unconstitutional and invalid, leading to the setting aside of the duty demand and interest in the present case.

Issue 3: Imposition of penalty under Rule 25 of Central Excise Rules
The appellant challenged the imposition of penalty under Rule 25 of Central Excise Rules, arguing it should have been under Rule 27. Citing precedents, the appellant contended that the penalty imposed was not proper. The Tribunal agreed with the appellant, stating that penalty should be imposed under Rule 27 instead of Rule 25. Consequently, the penalty was reduced from ?55,000/- to ?5,000/- for violating procedural rules.

In conclusion, the Tribunal partially allowed the appeal, setting aside the duty demand and interest while reducing the penalty imposed on the appellant. The judgment highlighted the unconstitutionality of Rule 8(3A) and the proper application of penalty rules under the Central Excise Rules.