TMI Blog2019 (10) TMI 217X X X X Extracts X X X X X X X X Extracts X X X X ..... f Indsur Global Ltd. held the expression without utilizing the CENVAT credit used in Rule (3A) as ultra vires and unconstitutional. Appeal allowed - decided in favor of appellant. - E/20687/2018-SM - Final Order No. 20706/2019 - Dated:- 4-9-2019 - HON'BLE MR. S.S GARG, JUDICIAL MEMBER Shri Raghavendra, Advocate For the Appellant Shri K.B. Nanaiah, Asst. Commissioner (AR) For the Respondent ORDER Per : S.S GARG The present appeal is directed against the impugned order dt. 24/10/2017 passed by the Commissioner(Appeals) whereby the Commissioner(Appeals) has upheld the Order-in-Original and rejected the appeal of the appellant. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the law. He further submitted that the appellant was already issued with the show-cause notice dt. 08/10/2010 covering the very same period for contravening of provisions of Rule 8(3A) of the Central Excise Rules, 2002 and hence the proceedings initiated through the present show-cause notice is illegal and overlapping. He further submitted that the appellant is a public sector undertaking owned by the Government of Kerala and was facing deep financial crisis and hence could not pay duty within the due date and the same was paid after utilizing the CENVAT credit along with interest. He further submitted that the provisions of Rule 8(3A) itself has been held to be unconstitutional by various decisions of High Courts and hence the question of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, I find that the demand has been confirmed only on account of the default in making the payment of excise duty on time. Further I find that the appellant subsequently paid the duty by utilizing the CENVAT credit along with interest which is not in dispute. Further I note that Rule 8(3A) to the extent requiring payment of duty without utilizing the CENVAT credit during the period of default is held to be unconstitutional by several High Courts. The Hon ble Gujarat High Court in the case of Indsur Global Ltd. held the expression without utilizing the CENVAT credit used in Rule (3A) as ultra vires and unconstitutional. The said decision was concurred by various High Courts of Madras, Punjab Haryana, Delhi and Allahabad and has been follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his ratio, we find that in the present case, the appellants have fully discharged the default amount, by 16-6-2006 in cash, with applicable interest for the delayed payment. In such situation to hold that the clearances subsequent to March, 2006 as non-duty paid clearance only on the ground that the Cenvat credit has been used for payment of such liability, is not legally sustainable. The ratio of the Hon ble Supreme Court s decision in the case of Jayaswal Neco Ltd. (supra) can be referred to. 7. Since the issue is squarely covered by the decision of the Tribunal as well as the High Courts cited supra, by following the ratio of the said decisions, I set aside the impugned order by allowing the appeal of the appellant. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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