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TMI Blog2013 (8) TMI 614X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 2.8.2012 and detention mahazar drawn by the second and third respondents dated 26.10.2012 and for a direction to permit the appellant to avail the Cenvat credit facility for future clearances after providing reasonable opportunity to the petitioner, by issuing show cause notice for violation of Rule 8 (3-A) of the Central Excise Rules. 3. The learned single Judge dismissed the Writ Petition, holding that the second respondent was justified in directing the appellant to pay the entire duty amount with interest without utilising the Cenvat credit. Aggrieved by the said order, the present appeal has been preferred. 4. Before we proceed to consider the contentions raised by the learned counsel appearing for the appellant and the submissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1962. The appellant having not complied with the said demand was issued with a detention mahazar dated 26.10.2012. Aggrieved by the action taken by the Department, the appellant filed the Writ Petition, challenging the demand dated 2.8.2012 and the consequential detention mahazar dated 26.10.2012. The learned single Judge, after analysing the statutory provisions, more particularly Rule 8(3-A), held that the said Rule does not permit the assessee to pay the excise duty by using the Cenvat credit as it restrain the assessee from using the Cenvat credit till the entire outstanding amount including the interest is paid. 6. Mr.K.Jayachandran, learned counsel appearing for the appellant submitted that the Department directed the appellant to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ken by the Department and dismissed the Writ Petition. 8. We have heard the learned counsel appearing on either side and perused the materials placed on records. 9. In the Writ Petition filed by the appellant, they have not challenged the validity of Rule 8 (3A) of the Rules, but, they have filed a separate Writ Petition in W.P.No.20421 of 2013, which is pending before this Court. Therefore, we are not called upon to decide the validity of Rule 8(3A) of the Rules in this Appeal. The appellant's primary ground of challenge is that the demand dated 2.8.2012 was raised without affording an opportunity and an opportunity may be granted to the appellant to submit their explanation. 10. The default in payment of central excise duty for the cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er dated 13.7.2012, they are entitled to pay the defaulted amount utilising the Cenvat credit . 12. After the demand dated 2.8.2012 was raised on the appellant, the appellant has paid Rs.5,00,000/- and has not made any further payment. It is seen that prior to issuing the demand dated 2.8.2012, the respondents have not issued any show cause notice. It is the contention of the respondents that the default committed by the appellant is deliberate and they are aware about the amount defaulted and they are also aware of the fact that they cannot utilise the Cenvat credit to liquidate these dues, therefore, there is no violation of principles of natural justice. 13. It may be true that the assessee is aware about the amount of Central Excise D ..... X X X X Extracts X X X X X X X X Extracts X X X X
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