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TMI Blog2015 (6) TMI 302X X X X Extracts X X X X X X X X Extracts X X X X ..... sultant For the Respondent : Shri Pramod Kumar, JCDR ORDER Per: Rakesh Kumar: The appellant are manufacturers of motor vehicle parts chargeable to central excise duty. They availed Cenvat credit of central excise duty paid on inputs under service tax paid on input service as per Cenvat Credit Rules, 2004. 2. In terms of provisions of Rule 8 of the Central Excise Rules 2002 the assessee were r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 85/- against which they paid the duty of Rs. 13,74,711/- and according to the appellant this was due to some clerical mistake, and as such there was short payment of Rs. 1174/-. Similarly during September 2011 the appellants monthly duty liability was Rs. 16,14,853/- against which the duty paid by the due date was Rs. 15,79,670/- and as such there were short payment of Rs. 35,184/-. 4. During scr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment of duty and the clearances would be treated as having been made that payment of duty. It is on this basis that the Commissioner vide Order-in-Original dated 31.03.2014 has confirmed the demand of Rs. 1,19,71,942/- against the appellant company alongwith interest thereon under section 11AB and has imposed penalty of Rs. 10.00 Lakhs on them under Rule 25. Against this order of the Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the forfeiture period till the assessee pays the outstanding amount including interest is unconstitutional and, therefore, the portion "without utilizing the Cenvat credit" in sub-rule (3A) of Rule 8 of Central Excise Rules 2002 shall be rendered invalid, that in view of this, the impugned order is without any basis. He therefore, pleaded that the requirement of pre-deposit of the duty demand and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t utilizing the Cenvat credit. We are therefore, of the prima-facie view that the impugned order is not correct and as such the appellant have strong prima-facie case in their favour. The requirement of pre-deposit of the duty demand, interest and penalty is therefore, waived for hearing of the appeal and recovery thereof is stayed during pendency of the appeal. Stay application is allowed. (Dict ..... X X X X Extracts X X X X X X X X Extracts X X X X
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