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2015 (10) TMI 1643 - AT - Central ExciseDuty demand - Whether during the period of default in discharge of duty liability beyond the period of one month from the due date, the assessee is required to pay duty without utilizing the cenvat credit or whether during this period, he can pay the duty on the clearances made by utilizing the cenvat credit - Held that:- Though on this issue, the Hon ble Madras High Court in the case of Unirols Airtex Vs. Asstt. Commissioner of Central Excise, Coimbatore (2013 (12) TMI 1398 - MADRAS HIGH COURT) has decided the issue against the appellant holding that during the period of default beyond the period of one month form the due date, the duty on the clearances is required to pay through cash without utilizing the cenvat credit, Hon ble Madras High Court in this case has not gone into the question of constitutionality of the provision. The Hon ble Gujarat High Court in the case of Indsur Global Ltd. (2014 (12) TMI 585 - GUJARAT HIGH COURT), after going into the question of constitutionality of this provision, has held that the condition contained in Rule 8(3A) regarding payment of duty without utilizing the cenvat credit during the period of default beyond the period of one month from the due date is unconstitutional. Accordingly, we hold that the appellant have strong prima facie case in their favour. Therefore, the requirement of pre-deposit of duty demand, interest and penalty is waived for hearing of the appeal and recovery thereof is stayed. - Stay granted.
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