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2015 (8) TMI 99 - AT - Central ExciseDemand of excise duty by cash under rule 8(3A) of CER - contravention of Rule 8 (1), 8(3) and 8(3A) of Central Excise Rules, 2002 and Rule 3 (4) of CCR 2004 - appellants defaulted payment of duty on consignment basis through PLA - penalty under rule 25 and Rule 15 - whether appellants have not paid central excise duty on consignment basis during default period and also utilized cenvat credit for payment of duty against the provisions of Rule 8 (3A) of CER - Held that:- Both Hon'ble Gujarat High Court [2014 (12) TMI 585 - GUJARAT HIGH COURT] and Madras High Court [2015 (5) TMI 603 - MADRAS HIGH COURT] have held that condition contained in Rule 8 (3A) of Central Excise Rules 2002 for payment of duty "without utilisation of cenvat credit" is contrary to the scheme of availment of cenvat credit under CCR and the said Rule 8(3A) is arbitrary and violative of Article 14 of the Constitution. Accordingly, the Hon'ble High Court has struck down the Rule 8(3A) as unconstitutional. The jurisdictional Hon'ble Madras High Court's ruling is binding on the jurisdictional adjudicating authority and also binding on this Tribunal. By respectfully following the ratio of the Hon'ble High Court orders referred to supra, we hold that demand of duty under Rule 8(3A) is unsustainable as the said Rule has been struck down by the Hon'ble High Court and the demand of duty and penalty imposed in the impugned orders is liable to be set aside - Decided in favour of assessee.
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