TMI Blog2015 (5) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... In any case, when the provisions of Rule 8 (3A) of Central Excise Rules requiring an assessee to pay duty through PLA without utilizing the credit during the period of default beyond the period of one month have been declared as unconstitutional, impugned order itself would not be sustainable. In any case, we do not understand, as to why the Commissioner in respect of the show cause notice dated 02.09.2013 for the period from October, 2012 to June 2013 has confirmed the demand of ₹ 69,06,534/- which had been paid through PLA and has included this amount while imposing penalty of ₹ 69,91,429/-. Prima-facie the order has been passed without any application of mind at all - requirement of pre-deposit of the duty demand, interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tarily paid sometime in January, 2014. The Department has invoked Rule 8 (3A) of the Central Excise Rules, 2002 and has held that since the default in payment of duty for the month of September, 2010 continued beyond the period of one month from the due date, the period starting from 5th September, 2010 till January, 2014 (by which time the entire duty alongwith interest had been paid) would be treated as forfeiture period and during this period the appellant were to pay duty consignment-wise and without utilizing the cenvat credit. During the period from January, 2012 to September, 2012, out of total excise duty of ₹ 52,00.199/- by the appellant paid ₹ 56018/- through PLA and the balance of ₹ 51,44,181/- was paid through ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. Shri. S.C. Kamra and Shri G.K.Mahajan, Advocates, the ld. Counsels for the appellant, pleaded that firstly, the non-payment of duty of ₹ 1,29,941/- during 5th September, 2010 till January, 2014 was due to clerical mistake and the appellant had sufficient cenvat credit balance in their cenvat credit account from which the entire amount of duty could have been paid and, hence, this should not be treated as a case of default covered by Rule8(3A). He also cited the judgment of Honble Gujarat High Court judgment in the case of Indsur Global Ltd. vs. Union of India 2 reported in 2014-TIOL-2115-HC-AHM-CX wherein Honble Gujarat High Court has gone into the question of the constitutional validity of the provisions of rule 8 (3A) of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Firstly, we are of the prima-facie view that in the circumstances of the case, this was not a case of default, as in the ER-I return for September, 2001 filed by the appellant while the appellant had showed duty payable as ₹ 1,29,541/- they had also shown the cenvat credit balance which was more than sufficient to discharge the duty liability and therefore, there is merit in the appellants plea that non-payment of duty, which is a small amount for such a big company, was due to bonafide mistake. In any case, when the provisions of Rule 8 (3A) of Central Excise Rules requiring an assessee to pay duty through PLA without utilizing the credit during the period of default beyond the period of one month have been declared as unconstitut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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