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2016 (10) TMI 909 - AT - Central ExciseConstitutional validity of Rule 8(3A) of the Central Excise Rules 2002 - Prohibition on assessee from utilising cenvat credit for payment of excise duty for default in payment of duty - discharge of part duty by making use of PLA - a part of the duty payable for the month of August 2008 was not paid by the appellant within the time limit allowed but was paid alongwith interest after delay in the month of November 2008 - whether the duty amount to the tune of about ₹ 12 lakhs already paid by the appellant by making use of Cenvat Credit needs to be demanded to be paid in cash/PLA? - Held that: - reliance placed on the decision of the case Indsur Global Ltd. vs. Union of India [2014 (12) TMI 585 - GUJARAT HIGH COURT] where it was held that Condition contained in sub-rule (3A) of rule 8 for payment of duty without utilizing the cenvat credit till an assessee pays the outstanding amount including interest is declared unconstitutional. Therefore, the portion "without utilizing the cenvat credit" of sub-rule (3A) of rule 8 of the Central Excise Rules, 2002, shall be rendered invalid. I find that there is no justification to proceed with the demand made under Rule 8 (3A) by the authorities below in as much as the Rule itself has been stuck down as unconstitutional - appeal allowed - facility of using Cenvat credit for making payment of excise duty cannot be denied - decided in favor of appellant.
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