2024 (4) TMI 7 - HC - Central Excise

Default of monthly payment of duty - consequent denial of utilization of Cenvat credit under Rule 8(3A) of the Central Excise Rules 2002 during the period September 2009 to August 2010 - HELD THAT - In view of the fact that four of the High Courts have already declared the provisions of Rule 8(3A) of the Central Excise Rules 2002 as ultra vires the Constitution and have also set-aside the order of the Commissioner in the given factual backdrop of the case the decision rendered by the Tribunal cannot be said to be in any manner arbitrary illegal or contrary to law. Once the provision of law itself has been struck down not one but by four High Courts it would had been difficult of the Tribunal to have sustained the order of the Commissioner. There are no substantial question of law made out calling for an interference with the impugned order - The appeal thus fails and is accordingly rejected.

Summary

Issues involved:
The case involves an appeal u/s 35H of the Central Excise Act, 1944 challenging the order of the Customs, Excise & Service Tax Appellate Tribunal (CESTAT) in Final Order No. A/30001/2020, dated 3-1-2020 in Appeal No. E/1108/2011, dated 3-1-2020 [(2023) 12 Centax 93 (Tri. - Hyd.)].

Issue 1: Default of monthly payment of duty and denial of utilization of Cenvat credit under Rule 8(3A) of the Central Excise Rules, 2002 (September, 2009 to August, 2010)
The Learned CESTAT considered the matter in light of previous judgments by High Courts, including High Court of Gujarat, Punjab & Haryana, Madras, and Bombay. These High Courts had declared Rule 8(3A) of the Central Excise Rules, 2002 as ultra vires the Constitution. Relying on these judgments, the appeal of the assessee was allowed by the Commissioner, Customs and Central Excise. The Tribunal's decision was deemed not arbitrary, illegal, or contrary to law as multiple High Courts had struck down the provision. The Tribunal's decision was upheld, and no substantial question of law was found to interfere with the impugned order.

Conclusion:
The appeal was rejected, and no costs were awarded. Any pending miscellaneous applications in the appeal were closed.