Home Case Index All Cases Central Excise Central Excise + HC Central Excise - 2021 (4) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (4) TMI 1109 - HC - Central ExciseDefault in payment of duty - Applicability of Rule 8(3A) of CER or section 11A of CEA - applicability of the case of Gujarat High Court in Indsur Global Ltd's case [2014 (12) TMI 585 - GUJARAT HIGH COURT]- HELD THAT:- In the instant case, admittedly the assessee had already paid as duty even before the audit declared amounts as payable. Rule 8(3A) applies to cases where the assessee had defaulted in payment of excise duty beyond 30 days from the due date. So, the said rule cannot apply to the instant case and as rightly held by the CESTAT, the said Rule does not apply to every case where in the department, during the scrutiny of returns, during audit or during investigation finds any additional amount payable as duty of excise. Such demands would be recoverable by issuing a notice under Section 11A of the Act and would be covered under Rule 8(3A) - The Tribunal has given cogent reasons for its finding that the assessee's case is a case of demand under Section 11A and is not covered by Rule 8(3A) and the Revenue was not correct in denying utilization of Cenvat Credit to the assessee by applying the said sub-rule. Gujarat High Court in Indsur Global Ltd's case declared that portion of sub-Rule (3A) of Rule 8, which requires a defaulter to clear the finished products on payment of excise duty without availing the Cenvat Credit as unreasonable and violative of Article 14 of the Constitution of India holding that it amounts to a serious restriction on the assessee's fundamental right to carry on trade or business of his choice which is guaranteed under Article 19(1)(g) of the Constitution of India - Merely because the Hon'ble Supreme Court granted stay of the said order of the Gujarat High Court, it is not open to the appellant herein to contend that the ratio of the Gujarat High Court ought not to be followed by this Court. The Tribunal rightly set aside the penalty imposed on the respondent and also the demand imposed on the respondent under Rule 8(3A) - no substantial question of law arises for consideration in this Appeal - Appeal dismissed - decided against Revenue.
|