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TMI Blog2019 (6) TMI 259X X X X Extracts X X X X X X X X Extracts X X X X ..... 05 March, 2008 to 12 March, 2008 - further during the period from 05 March, 2008 to 12 March, 2008 there was no payment of central excise duty through debit of cenvat credit. Therefore, in both the appeals there were no grounds to invoke provisions of Rule 8(3A) of Central Excise Rules. Appellants shall be entitled to refund of ₹ 1,80,764/- paid in cash on 07 October, 2008 along with applicable interest - appeal allowed. - Excise Appeal No.138, 139 of 2011-Single Member - FINAL ORDER NO. 71078-71079/2019 - Dated:- 30-5-2019 - MR. ANIL G. SHAKKARWAR, MEMBER (TECHNICAL) Shri Nishant Mishra, Advocate for the Appellant Shri Sandeep Kumar Singh, Deputy Commissioner Authorized Representative fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Credit Rules, 2004. Therefore, it appeared that till the month of May, 2008 there was default in payment of duty therefore, a show cause notice dated 02 March, 2009 was issued to the appellant invoking provisions of Rule 8 (3A) of Central Excise Rules, 2002 for recovery of cenvat credit debited for the months of February, April and May, 2008 to the tune of ₹ 31,31,250/- disallowing the same from cenvat credit account in terms of Rule 8(3A) of Central Excise Rules, 2002. The amount of ₹ 1,80,764/- was deposited by the appellant through cash payment on 07 October, 2008. The same was proposed to be appropriated through the said show cause notice for the month of January, 2008. Subsequently another show cause notice dated 26 June, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uced. Aggrieved by both the impugned Orders-In-Appeal, appellant is before this Tribunal. 4. Heard Shri Nishant Mishra, learned counsel for the appellant. He has submitted that main argument in the proceedings is that the amount of ₹ 1,80,674/- debited on 15 February, 2008 from cenvat account was not available to the appellant as on 31 January, 2008 and the same was paid in cash on 07 October, 2008 and therefore, the default continued from 05 February, 2008 to 07 October, 2008 and therefore, all the cenvat debits during the period from 05 February, 2008 to 07 October, 2008 have been disallowed and equal amount is confirmed under the provisions of Rule 8(3A) of Central Excise Rules. He has submitted that said debit of &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15 February, 2008 is proper then the cash payment of equivalent amount made on 07 October, 2008 is double payment of duty and the same needs to be refunded by Revenue along with applicable interest. He has further argued that once it is established there was no default beyond 12 March, 2008, both the impugned order become unsustainable. 5. Learned AR Shir Sandeep Kumar Singh appearing on behalf of the Revenue has submitted that Department has filed an appeal before Hon ble Supreme Court against the said order passed by Hon ble Gujarat High Court in the case of Advance Surfactants India Ltd. and time may be given to find out the present position of said appeal filed before Hon ble Supreme Court. 10 days time was given to bot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 77; 1,80,764/- on 15 February, 2008 for payment of Central Excise duty for the month of January, 2008 is in accordance with law. Therefore, I hold that default remained only from 05 March, 2008 to 12 March, 2008. I further find that during the period from 05 March, 2008 to 12 March, 2008 there was no payment of central excise duty through debit of cenvat credit. Therefore, I hold that in both the appeals before me there were no grounds to invoke provisions of Rule 8(3A) of Central Excise Rules. I, therefore, hold that impugned orders are not sustainable. I, therefore, set aside both the impugned orders and allow both the appeals. Appellants shall be entitled to refund of ₹ 1,80,764/- paid in cash on 07 October, 2008 along with applica ..... X X X X Extracts X X X X X X X X Extracts X X X X
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