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TMI Blog2024 (11) TMI 1339X X X X Extracts X X X X X X X X Extracts X X X X ..... ultra vires to the Main Act. The Hon ble Gujarat High Court in the case of M/s. Indsur Global Ltd. Vs. UOI [ 2014 (12) TMI 585 - GUJARAT HIGH COURT ] struck down the condition in Rule 8(3A) for payment of duty without utilizing the CENVAT credit as unconstitutional and invalid. It is found that the Department had preferred an appeal against the decision passed in Indsur Global Ltd. before the Hon ble Supreme Court. The Ld. Counsel for the appellant has submitted before us that the appeal filed by the Department in Indsur Global Ltd. has been disposed by the Hon ble Apex Court [ 2024 (7) TMI 1559 - SC ORDER (LB) ]. The appeal was referred to the Lok Adalat proceedings before the Hon ble Supreme Court and settlement has been arrived at. The e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urns on a quarterly basis instead of on a monthly basis, in as much as the aggregate value of clearances from their multi locational factories had exceeded Rs. 4 Crores during each of the financial years 2010-11, 2011-12 and 2012-13 and thus not eligible to avail the SSI exemption in terms of Notification no. 08/2003-CE dated 01.03.2003. Hence, the department alleged that the payment of duty on a quarterly basis resulted in default in payment of duty beyond 30 days from the due dates and the Appellant was not entitled to utilize the Cenvat Credit of Rs. 1,54,02,811/- for payment of duty during the period from January 2011 to March 2014 in terms of Rule 8(3A) of the Rules. Further, it was also alleged that Appellant had not filed periodical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vide Notification no. 19/2014-CE dt.11.07.2014(relevant extracts reproduced below) would apply retrospectively and hence the proceedings contemplated in the SCN was not sustainable. for sub-rule (3A), the following sub-rule shall be substituted, namely : (3A) If the assessee fails to pay the duty declared as payable by him in the return within a period of one month from the due date, then the assessee is liable to pay the penalty at the rate of one per cent. on such amount of the duty not paid, for each month or part thereof calculated from the due date, for the period during which such failure continues. Explanation- For the purposes of this sub-rule, 'month' means the period between two consecutive due dates for payment of duty sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decision in the case of M/s. Uniworth Textiles Ltd. Vs CCE [2013 (288) ELT 161 SC]. 4. The Ld. Counsel for the Appellant reiterated the grounds of appeal and submitted that the Tribunal in a batch of appeals involving identical issues, allowed the appeals filed by various assesses in Final Order No.40847-40873/2015 dated 07.07.2015. It was also pointed out that the judgement in M/s. Indsur Global Ltd. was also followed by the Hon ble Madras High Court in the case of M/s Malladi Drugs reported in [2015 (322) ELT 489 (Mad.)]. Further, reliance was placed on the ratio of the following decisions: - (i) Commissioner of Customs, Central Excise Service Tax, Hyderabad-I vs. Andhra Cylinders Pvt. Ltd. [2024 (4) TMI 7 HC (Telangana)] (ii) Paralle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [2024 (7) TMI 1356-Calcutta High Court], Sandley Industries Ltd. Vs. UOI [2015 (326) ELT 256 (P H)], Burgeon Pharmaceuticals Pvt. Ltd. Versus Commissioner of GST Central Excise, Chennai [2024 (7) TMI 681] and Andhra Cylinders Pvt. Ltd., Nalin Khara, Managing Director Vs. Commissioner of Customs, Central Excise Service Tax, Hyderabad-I [2020 (I) TMI 189 CESTAT Hyderabad]. Therefore, in terms of the above decisions, the Ld. AR submitted that the demand was sustainable and prayed for dismissal of the appeal filed by the Appellant. 6. Heard both sides and carefully considered the submissions and evidences on record. 7. The main issues that arise for consideration in these appeals are:- i. Whether the demand as confirmed and upheld in the impug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ences and penalties as provided in these rules shall follow . It was the departments case that the Appellant, being ineligible for availing SSI exemption, ought to have discharged duty on a monthly basis instead of on quarterly basis and therefore defaulted in payment of duty and being so duty payments were not made through PLA account as the appellant was not eligible to utilize Cenvat Credit for payment of duty in terms of the said rule. 9. The issue as to whether the Assessee can utilise the CENVAT credit toward payment of duty when in default is no more res integra and many judicial authorities have held that the provision of Rule 8(3A) of Central Excise Rules, 2002 as ultra vires to the Main Act. The Hon ble Gujarat High Court in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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