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2023 (10) TMI 1157 - AT - Central ExciseConstitutional Validity of Rule 8 (3A) of the Central Excise Rules, 2002 - bar on use of the credit accumulated in Cenvat Credit in making payment of Central Excise Duty - failure to pay duty involving on goods removed for the months of November & December 2006, within the due dates as specified in Rule 8(1) of the Central Excise Rules, 2002 - demand of duty alongwith interest and penalty - HELD THAT:- It is found that the provisions of Rule 8 (3A) of the Central Excise Rules, 2002, based on which the demand for duty has been raised by the Department has been struck down by the various High Courts as ultra vires. In this connection, reference can be made for the decisions in INDSUR GLOBAL LTD. VERSUS UNION OF INDIA & 2 [2014 (12) TMI 585 - GUJARAT HIGH COURT], M/S. MALLADI DRUGS & PHARMACEUTICALS LTD. VERSUS THE UNION OF INDIA, THE COMMISSIONER OF CENTRAL EXCISE [2015 (5) TMI 603 - MADRAS HIGH COURT], M/S SANDLEY INDUSTRIES VERSUS UNION OF INDIA AND OTHERS [2015 (10) TMI 2455 - PUNJAB & HARYANA HIGH COURT] PRECISION FASTENERS LTD & 1 VERSUS COMMISSIONER OF CENTRAL EXCISE & 2 [2014 (12) TMI 655 - GUJARAT HIGH COURT] and M/S A.T.V. PROJECTS INDIA LTD. VERSUS UNION OF INDIA AND OTHERS [2016 (9) TMI 321 - ALLAHABAD HIGH COURT]. In view of the above decisions including the decision of the Jurisdictional High Court, there is no bar in making use of the accumulated Cenvat Credit for making payment of Central Excise Duty even during default period. The Jurisdictional High Court at Calcutta, in the case of M/S. GOYAL MG GASES PVT. LTD VERSUS UNION OF INDIA & OTHERS [2017 (8) TMI 1515 - CALCUTTA HIGH COURT] has followed the decision of the Gujarat High Court in INDSUR GLOBAL LTD. VERSUS UNION OF INDIA & 2 [2014 (12) TMI 585 - GUJARAT HIGH COURT] and has held the portion of rule 8 (3A) as ultra vires. Thus, there is no bar in making use of the accumulated Cenvat Credit in making payment of Central Excise Duty even during the default period. In the result, the Impugned Order is set aside - appeal allowed.
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