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TMI Blog2020 (1) TMI 189X X X X Extracts X X X X X X X X Extracts X X X X ..... y various parties were decided by the Hon ble High Court of Madras striking down Rule 8(3A) as ultra vires. At least four different High Courts have struck down the constitutional validity of Rule 8(3A) of Central Excise Rules, 2002 and appeals against such judgments have been admitted by the Hon ble Supreme Court and have yet to be decided. There was a stay in one case i.e., Indsur Global Ltd (supra) only but there was no stay in respect of the other judgments - What needs to be decided in this factual matrix is where there are judgments by four different High Courts holding Rule 8(3A) as ultra vires and there is no judgment of any High Court upholding it and where the appeals against these judgments have been admitted and are under consideration of the Hon ble Apex Court, whether the ratio of these judgments bind this tribunal or otherwise. We find that the last in the series of judgments was passed by the Hon ble High Court of Bombay in the case of Nashik Forge Pvt Ltd (supra) on 17.09.2018 holding that the ratio of the judgment of the Hon ble High Court of Madras, Gujarat and Punjab Haryana apply. Demand set aside - appeal allowed - decided in favor of appellant. - HON'BL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral Board of Excise and Customs for this purpose shall be deemed to be the date on which the duty has been paid subject to realization of that cheque. Explanation . - For removal of doubts, it is hereby clarified that the duty liability shall be deemed to have been discharged only if the amount payable is credited to the account of the Central Government by the specified date. (2) The duty of excise shall be deemed to have been paid for the purposes of these rules on the excisable goods removed in the manner provided under subrule (1) and the credit of such duty allowed, as provided by or under any rule. (3) If the assessee fails to pay the amount of duty by due date, he shall be liable to pay the outstanding amount along with interest at the rate specified by the Central Government vide notification under section 11AB of the Act on the outstanding amount, for the period starting with the first day after due date till the date of actual payment of the outstanding amount. (3A) If the assessee defaults in payment of duty beyond thirty days from the due date, as prescribed in sub-rule (1), then notwithstanding anything contained in said sub-rule (1) and sub-rule (4) of rule 3 of CEN ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... td [2019 (368) ELT 20 (Bom.)], struck down the Rule 8(3A). 7. He would urge that since the four different High Courts have struck down the Constitutional validity of Rule 8(3A) the same cannot be enforced and accordingly, the entire basis for the show cause notice, the confirmation of demand and imposition of penalties by the impugned order cannot stand. He fairly submits that the first of the series of judgments was the judgment by the Hon ble High Court of Gujarat in the case of Indsur Global Ltd (supra) which has been stayed by the Hon ble Apex Court as reported in 2016 (335) ELT A109 (SC). He would submit that regardless of the fact that the judgment of the Hon ble High Court of Gujarat has been stayed by the Hon ble Apex Court, underlying ratio regarding the validity of Rule 8(3A) still holds good as this ruling of the Hon ble High Court of Gujarat has not been struck down by the Hon ble Apex Court. It is his assertion that, in the circumstances, the ratio of the judgment of the Hon ble High Court of Gujarat still holds. He relies on the case law of Space Telelink Ltd [2017 (3) TMI 1599 (Delhi HC)] in which it has been held that staying or an order or the judgment by a lower c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th sides and perused the records. We find the entire issue revolves around the vires of Rule 8(3A) of Central Excise Rules, 2002. In the case of Indsur Global Ltd (supra) the Hon ble High Court of Gujarat has struck it down as unconstitutional. This judgment of the Hon ble High Court of Gujarat has been stayed by the Hon ble Apex Court. Similar decision was taken by the Hon ble High Court of Gujarat in the case of Shreeji Surface Coatings Pvt Ltd (supra) and it does not appear that this order has been struck down or stayed by the Hon ble Supreme Court. However, an appeal against this appears to have been admitted by the Hon ble Apex Court. In the case of Malladi Drugs Pharmaceuticals Ltd (supra) a batch of writ petitions filed by various parties were decided by the Hon ble High Court of Madras striking down Rule 8(3A) as ultra vires. Against this batch order three appeals have been admitted by the Hon ble Apex Court which are as follows: a) SVM Auto Products [2017 (349) ELT A220 (SC)] b) Hari Alloys Pvt Ltd [2016 (342) ELT A228 (SC)] c) Titan Industries Ltd [2016 (341) ELT A155 (SC)] 13. Revenue s appeal against judgment of the Hon ble High Court of Punjab Haryana in the case of Sa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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