2019 (10) TMI 217 - AT - Central Excise

Default in making the payment of excise duty on time - bar on utilization of CENVAT Credit - Rule 8(3A) of the Central Excise Rules, 2002 - HELD THAT - The demand has been confirmed only on account of the default in making the payment of excise duty on time. Further, the appellant subsequently paid the duty by utilizing the CENVAT credit along with interest which is not in dispute. Further, the Rule 8(3A) to the extent requiring payment of duty without utilizing the CENVAT credit during the period of default is held to be unconstitutional by several High Courts. The Hon ble Gujarat High Court in the case of Indsur Global Ltd. held the expression without utilizing the CENVAT credit used in Rule (3A) as ultra vires and unconstitutional. Appeal allowed - decided in favor of appellant.

Summary

Issues:
Appeal against Commissioner(Appeals) order upholding Order-in-Original and rejecting appellant's appeal. Appellant, a Kerala Government company, faced financial crisis, leading to delayed payment of excise duty. Appellant's challenge based on unconstitutionality of Rule 8(3A) of Central Excise Rules, 2002, and imposition of penalty.

Analysis:

Issue 1: Challenge to Impugned Order
The appellant contested the impugned order, arguing that it failed to consider facts and law properly. The appellant highlighted financial difficulties faced, leading to delayed duty payment. The appellant relied on various court decisions declaring Rule 8(3A) unconstitutional, such as Indsur Global Ltd. vs UOI and Malladi Drugs & Pharmaceuticals Ltd. vs UOI. The appellant further argued against penalty imposition, citing cases like ATV Projects India Ltd. vs UOI and GEI Industrial Systems Ltd. vs CCE, Bhopal.

Issue 2: Defense of Impugned Order
The Assistant Commissioner defended the impugned order, supporting the demand for duty based on the default in timely payment. However, the appellant eventually paid the duty with interest, utilizing CENVAT credit, which was not disputed. The Tribunal noted that Rule 8(3A) was held unconstitutional by several High Courts, including Gujarat High Court in Indsur Global Ltd. case. The Tribunal referred to various decisions supporting this stance, like Precision Fasteners Ltd. and A.R. Metallurgicals (P) Ltd.

Issue 3: Tribunal's Decision
After considering arguments and case law, the Tribunal found in favor of the appellant. The Tribunal noted the binding nature of decisions by High Courts and the Tribunal on the unconstitutionality of Rule 8(3A). Referring to the GEI Industrial Systems Ltd. case, the Tribunal emphasized the full discharge of the default amount by the appellant. The Tribunal set aside the impugned order, allowing the appeal of the appellant based on the legal principles established by previous judgments.

In conclusion, the Tribunal's decision highlighted the unconstitutionality of Rule 8(3A) and the appellant's compliance with duty payment, leading to the appeal being allowed.