TMI Blog2024 (12) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of Rule 8(3A) of Central Excise Rules, 2002 as ultravires 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 in UNION OF INDIA ORS. VERSUS INDSUR GLOBAL LTD. [ 2024 (7) TMI 1559 - SC ORDER (LB)] . The appeal was referred to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent withdrawing the facility of payment of duty through CENVAT account w.e.f. 27.03.2006 as the Appellant had defaulted in timely payment of duty on goods cleared by them. As the removals were alleged to be non-duty paid goods in contravention of Rule 8(3A) of the Central Excise Rules,2002 (Rules), Show Cause Notices dated 08.12.2011 and 22.08.2012 were issued to the Appellant proposing to demand duties of Rs.42,71,978/- and Rs. 42,37,030/- during the periods from April 2011 to July 2011 and August 2011 to December 2011 respectively under Section 11A(1) of the ACT read with Rule 8(3a) of the Rules along with appropriate interest under Section 11AB and to impose penalties under Rule 25 of the Rules ibid read with Section 11AC of the ACT. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... envat account and such a procedure prescribing payment through PLA only caused undue hardship on the Appellant. (iv) It was averred that availment of Cenvat credit is a right accrued under Central Excise statute and the Appellant cannot be barred from utilizing the credit availed towards payment of duty. (v) It was averred that the department overlooked the stay granted by the Hon ble High Court of Madras relating to the same issue in show cause notices issued for prior periods. (vi) It was submitted that there was no mens rea on the part of the Appellant as there was no violation of the regulation and intention to evade payment of duty and hence in view of a catena of judgements rendered by High Court/ Supreme Court, the imposition of pena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered 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 impugned order dated 23.04.2015 for violation of Rule 8(3A) against the Appellant is sustainable in law or not? ii. Whether such demand can be raised invoking the extending period and imposition of penalty is justified? 8. The main issue involved in the present appeal is whether an assessee who failed to make full payment of duty within prescribed time limit as provided under Rule 8 of Central Excise Rules, 2002 and defaulted in payment of excise duty in terms of Rule 8(1) and Rule 8(3) of the said Rules, would be bound by the provisions of Rule 8(3A) of Central Excise Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Main Act. The Hon ble Gujarat High Court in the case of M/s. Indsur Global Ltd. Vs. UOI [2014 8 (310) ELT 833 (Guj.)] struck down the condition in Rule 8(3A) for payment of duty without utilizing the CENVAT credit as unconstitutional and invalid. This judgment of the Hon ble Gujarat High Court has been followed by other High Courts in a series of other cases as follows: - i. Shreeji Surface Coatings Pvt. Ltd. Vs. Union of India [2015 (320) ELT 764 (Guj.)]. ii. Malladi Drugs and Pharmaceuticals Limited vs. Union of India [2015 (323) ELT 489 (Mad.)]. iii. Sandley Industries vs. Union of India [2015 (326) ELT 256]. iv. Burgeon Pharmaceuticals Pvt. Ltd. Versus Commissioner of GST Central Excise, Chennai [2024 (7) TMI 681]. 10. We find th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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