2016 (8) TMI 533 - AT - Central Excise

Demand of interest - utilization of Cenvat Credit to pay duty during the defaulted period - contravention of provision of Rule 8(3A) of the Central Excise Rules, 2002 - non-service of show cause notice - Held that - in the light of the judgment of Hon ble High Court of Madras in the case of AR Metallurgical (P)Ltd Vs CESTAT, Chennai 2015 (5) TMI 661 - MADRAS HIGH COURT followed by the judgment of Hon ble High Court of Gujarat in the case of Indsur Global Ltd Vs UOI 2014 (12) TMI 585 - GUJARAT HIGH COURT , it is held that the condition contained in sub-rule (3A) of Rule 8 of the Central Excise rules, 2002 as unconstitutional, therefore, the demand of interest is not sustainable. - Decided in favour of appellant

Summary

Issues:
Challenge of demand of interest on utilization of Cenvat Credit in contravention of Rule 8(3A) of the Central Excise Rules, 2002.

Analysis:
1. The appellant contested the demand of interest due to the utilization of Cenvat Credit against the provision of Rule 8(3A) of the Central Excise Rules, 2002. The issue arose from the delayed payment of excise duty for various months, leading to the restriction on utilizing Cenvat Credit until the outstanding amount, including interest, was paid.

2. The appellant eventually paid the defaulted duty along with interest after a significant delay. Subsequently, the department directed the appellant to pay a specific amount, which was remitted through PLA in two installments. However, a demand for additional interest was later served without a show cause notice, citing statutory liability without the need for a separate notice.

3. The crux of the matter revolved around the demand of interest on wrongly availed credit during the defaulted period. The appellant argued that the provision restricting Cenvat Credit use during default, as per sub-rule (3A) of Rule 8, was declared unconstitutional by the High Court of Gujarat in a specific case, leading to a change in the mechanism for recovery.

4. Citing judgments from the High Courts of Gujarat and Madras, the Tribunal concluded that the condition in sub-rule (3A) of Rule 8 of the Central Excise Rules, 2002, regarding payment of duty without utilizing Cenvat Credit, was unconstitutional. Consequently, the demand for interest was deemed unsustainable, leading to the setting aside of the impugned order and allowing the appeal in favor of the appellant.