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TMI Blog2014 (12) TMI 324X X X X Extracts X X X X X X X X Extracts X X X X ..... 2011. On this basis it has been held that during the subsequent four months the assessee was in default therefore CENVAT credit could not have been utilized as per the Rule 8(3A) of Central Excise Rules 2002. Proceedings were initiated have culminated in demand for duty of Rs. 2,18,79,034/- on the ground that CENVAT credit could not have been utilized and the same should have been paid in cash and also confirmation of demand of an amount of Rs. 25,327/- being the education cess paid by utilizing the credit of duty. Penalty also has been imposed. 2. Learned counsel submits that the appellants have paid the amount of Rs. 25,327/- with interest in cash subsequently. He also submits that show-cause notice was issued based on the intimation giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd all the subsequent decisions of the Tribunal following this decision are per incuriam. The relevant paragraph is Para 8 which we reproduce below: "8. It is true that in Sun Pharmaceutical Industries case, it was held that sub-rule 7(b) of Rule 3 makes it clear that limitation placed in view of utilization of Cenvat credit obtained through education cess paid on inputs and that the said sub-rule has no application at all in regard to utilization of basic excise duty, the observation, however, runs counter to the provision of law and therefore, the decision will have to be held as per incuriam. All the subsequent orders based on Sun Pharmaceutical Industries case, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under separate heads. The facility to transfer the balance from the Special Excise Duty Head to the Basic Excise Duty Head in the account maintained under Rule 57A may be allowed on an application submitted by a manufacturer. While granting this permission, Chief Accounts Officer may be kept suitably informed". 3.2. The decision of the Hon'ble High Court as published in the ELT extracting the relevant portion is also reproduced as under: "This application has been filed by the petitioner/appellant challenging an order passed by the learned Tribunal. The application has been filed after the period of limitation. The petitioner could not explain the delay in filing this application. No s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant-EOU, handling both Excise and Customs work, could make adjustment of short paid Central Excise duty against education cess paid in excess. It held that he amounts had been paid to the Central Government under different heads and such payment was not in dispute. The Tribunal directed the jurisdictional Commissioner to make adjustment between the short and excess payments and consider refund of balance amount after adjustment subject to filing of claim therefore. [Commissioner V. South Asian Petrochem Ltd.-2009 (233) E.L.T. A133(Cal.)] 3.3 It can be seen that the Hon'ble High Court of Kolkata has clearly held that if there is an excess payment in one category of duty and there is short payment in another category ..... X X X X Extracts X X X X X X X X Extracts X X X X
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