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M/s Vikrant Auto Industries Versus C.C.E. Delhi-I

2015 (6) TMI 222 - CESTAT NEW DELHI

Waiver of pre deposit - Utilization of CENVAT Credit - failure to discharge full duty liability due to clerical mistake - Payment to be made through PLA Account - Held that:- One of the grounds raised in the appeal was that there was no intention on the part of the appellant not to discharge full duty liability for April 2012 inasmuch as while the short fall in payment was to the extent of ₹ 2 Lakh, at that time they had cenvat credit balance amount of ₹ 3.3 Lakh and though this poin .....

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/2015, Excise Appeal No. E/53076/2014 -Ex[DB] - Misc. Order No. 51092-51093/2015 - Dated:- 25-3-2015 - Hon'ble Mr. Rakesh Kumar, Member (Technical) And Hon'ble Mr. S.K. Mohanty, Member (Judicial),JJ. For the Appellant : Mr. Amit Jain & Mr. Vipul Agarwal, Advocates For the Respondent : Mr. MS Negi, DR ORDER Per Rakesh Kumar (for the Bench): In this case, the appellant s duty liability for the month of April, 2012 was ₹ 10,10,590/- which they were to pay by 05.05.2012. The appell .....

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mistake and paid the balance amount of ₹ 2 lakh with interest on 19.12.2012. This delay in discharge of full duty liability for the month of April, 2012 was noticed by the audit sometime in the July, 2013. In terms of Rule 8(3A) Central Excise Rules, 2002, when there is delay in discharge of duty liability for a particular month beyond the period of one month from due date, the provisions of this sub rule become applicable and accordingly the assessee is required to pay duty consignment wi .....

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must pay this duty through PLA and once they pay this duty through PLA they can make a reverse entry in the cenvat credit account, the Department also sought imposition of penalty on them under section 11AC. However, in the meantime in August, 2013, the appellant had paid an amount of ₹ 25 Lakhs through PLA towards their above liability. The matter was adjudicated by the Commissioner vide order-in-original dated 19.03.2014 by which the Commissioner confirmed the duty demand of ₹ 60, .....

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77; 2 Lakh for the month of April 2012 but the same was not done due to clerical mistake and as such there was no suppression or intent on the part of the appellant to evade the payment of duty. Against this order of the Tribunal, this appeal has been filed along with stay application. 1.2 The stay application was heard on 26.11.2014 where the Tribunal, vide order dated 26.11.2014 taking note of the judgement of Hon ble Madras High Court in the case of Uniroll vs CCE Coimbatore reported in 2013 .....

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Court in the case of Indusar Global Ltd. vs. UOI reported in 2014 (310) ELT 833 Guj. by which the condition of payment of duty, without utilizing the cenvat credit, during forfeiture period under Rule 8(3)(A) has been declared unconditional, the stay order passed by the Tribunal would not be correct. Accordingly, it has been prayed to modify the said order dated 26.11.2014. 2. Heard both the sides in respect of miscellaneous application. 3. Sh. Amit Jain, Advocate, the Ld. Counsel for the appel .....

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of ₹ 2 Lakh was not paid, that as soon as the appellant realized this mistake, they paid the balance amount of R.s 2 Lakh on 19.12.2012 along with interest, that in view of this, this cannot be treated as a case of willful default so as to invoke the Rule 8(3) (A), that this point has been raised in the grounds of appeal but the same was not considered, that in any case, in view of judgment of Hon ble Gujarat High Court, in case of Indusar Global Ltd. vs. UOI (supra, the provision of Rule .....

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(202) ELT 177 Tri.LB in para 6 of which the Larger Bench held that when a decision rendered by Apex Court is not considered, it is obvious that non-consideration of such binding precedent would constitute an error apparent on the face of the record by applicability of the doctrine of per incuriam, and that in the cases where due to inadvertence or oversight, Court or Tribunal fails to notice the statutory provision or a binding authority, the principle of per incuriam may apply as held by the A .....

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question whether there was error apparent from the record of the order, (which could not have taken into consideration, such subsequent decision), would still arise, since the binding decision of the Apex Court that declared the law as it always was, would cover even the prior period from the inception of such law, during which the orders contrary to such ratio of the subsequent binding decision were passed, that the ratio of this judgment of the Larger Bench of the Tribunal is squarely applicab .....

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failure to pay the duty due for a particular month by the due date and where the delay in discharge of monthly duty liability, was beyond the period of one month from the due date, had ordered a pre-deposit of ₹ 6 Lakhs, and Hon ble High Court in this case, taking note of the judgment in the case of Indusar Global Ltd. vs. UOI (supra), remanded the matter to the Tribunal to the appeal on merits, he pleaded the in view of this judgment also, the stay order dated 26.11.2014 merits reconsider .....

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dered the submissions from both the sides and perused the records. The stay order directing the appellant to deposit the disputed amount of duty of ₹ 60,35,409/- through PLA had been passed on 26.11.2014, keeping in view, the judgment of Hon ble Madras High Court in the case of Unirolls vs CCE Coimbatore reported in 2013 (296) ELT-449 Mad. Wherein interpreting the provisions of Rule 8(3A) of the Central Excise Rules, 2002 Hon ble High Court had held that when the failure to discharge month .....

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t in the case of Indusar Global Ltd. vs. UOI (supra), in its judgment dated 27.11.2014 has gone into the question of constitutionality of this provision and has held that the provision in Rule 8(3A), that during a period of default beyond the period of one month from the due date, the duty is required to be paid by the assessee without utilizing the cenvat credit is unconstitutional. On the question of constitutionality of the provision of Rule 8(3A) there is no contrary judgment of any other Hi .....

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not considered, it is obvious that non-consideration of such binding precedent would constitute and error apparent on the face of the record by applicability of the doctrine of per incuriam, and that in the cases where due to inadvertence or oversight, Court or Tribunal fails to notice the statutory provision or a binding authority, the principle of per incuriam may apply as held by the Apex Court in the case of Fuerst Day Lawson Ltd. vs Jindal Exports reported in (2001) 6 SCC 356. However, tho .....

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ll arise, since the binding decision of the Apex Court that declared the law as it always was, would cover even the prior from the inception of such law, during which the orders contrary to such ratio of the subsequent binding decision were passed. This again will be so on the reasoning that since the binding decision of the Apex Court pr the jurisdictional High Court has declared the meaning of the law, there was no scope for any debate and, therefore, the prior order of the Tribunal, which tho .....

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. Precisely to prevent mockery of finality of the decisions and adjudicatory processes, the amendment was made in the Code of Civil Procedure by adding an explanation with effect from 1.2.1977 to Rule 2 of Order XLVII of the Code of Civil Procedure. As per this explanation, it was laid down that, the fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision if a superior Court in any other case, shall not be a .....

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to the assessee to seek such rectification by placing reliance on a judgment of the Supreme Court rendered subsequent to the assessment, held in paragraph 13 of the judgment that, notwithstanding what may have been done by any authority below the Supreme Court, when the Supreme Court pronounces on the true position of law any decision rendered by any other authority contrary to that, is required to be regarded as an error which is apparent on the accordance with the provisions of the statute wa .....

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ference is answered accordingly. 6. We also take note of the fact that in the case of SNE India (P) Ltd. (supra) where an identical dispute was involved, and the Tribunal had ordered pre-deposit and on the appellant s failure to deposit the directed amount, the appeal has been dismissed, on appeal being filed to Hon ble Delhi High Court against this order, Hon ble Delhi High Court vide judgment dated 23.02.2015 has set aside the Tribunal s order and remanded the matter to the Tribunal to decide .....

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