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2020 (1) TMI 189 - CESTAT HYDERABADVires of Rule 8(3A) of the Central Excise Rules, 2002 - Default of monthly payment of duty - denial of utilization of Cenvat credit under Rule 8(3A) of the Central Excise Rules, 2002 - period September, 2009 to August, 2010 - HELD THAT:- In the case of Indsur Global Ltd [ 2014 (12) TMI 585 - GUJARAT HIGH COURT ] the Hon’ble High Court of Gujarat has struck it down as unconstitutional. This judgment of the Hon’ble High Court of Gujarat has been stayed by the Hon’ble Apex Court. Similar decision was taken by the Hon’ble High Court of Gujarat in the case of Shreeji Surface Coatings Pvt Ltd (supra) and it does not appear that this order has been struck down or stayed by the Hon’ble Supreme Court. However, an appeal against this appears to have been admitted by the Hon’ble Apex Court. In the case of Malladi Drugs & Pharmaceuticals Ltd (supra) a batch of writ petitions filed by various parties were decided by the Hon’ble High Court of Madras striking down Rule 8(3A) as ultra vires. At least four different High Courts have struck down the constitutional validity of Rule 8(3A) of Central Excise Rules, 2002 and appeals against such judgments have been admitted by the Hon’ble Supreme Court and have yet to be decided. There was a stay in one case i.e., Indsur Global Ltd (supra) only but there was no stay in respect of the other judgments - What needs to be decided in this factual matrix is where there are judgments by four different High Courts holding Rule 8(3A) as ultra vires and there is no judgment of any High Court upholding it and where the appeals against these judgments have been admitted and are under consideration of the Hon’ble Apex Court, whether the ratio of these judgments bind this tribunal or otherwise. We find that the last in the series of judgments was passed by the Hon’ble High Court of Bombay in the case of Nashik Forge Pvt Ltd (supra) on 17.09.2018 holding that the ratio of the judgment of the Hon’ble High Court of Madras, Gujarat and Punjab & Haryana apply. Demand set aside - appeal allowed - decided in favor of appellant.
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