TMI Blog2015 (6) TMI 222X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 appellant, however, paid an amount of ₹ 7,10,590/- through cenvat credit account and an amount of ₹ 1 lakh through PLA and as such there was short fall of ₹ 2 Lakh. It is not in dispute that at time, the cenvat credit balance was about ₹ 3,30,000/- and the failure to discharge full duty liability was due to clerical mistake as the appellant could have paid the balance amount of ₹ 2 lakh also through cenvat credit. It is also not in dispute that the appellant realize this 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 de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to make reverse entry in their cenvat credit account. Compliance was to be reported on 04.03.2015. 1.3 The appellant in respect of the above said order, have filed two Miscellaneous Applications No. E/50225 50638/2015 for modification of the stay order on the ground that in view of the judgment of Hon ble Gujarat High 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 appellant pleaded that as noted by the Commissioner in para 19.2 of the Order-in-original, the failure to discharge full duty liability for the month of April, 2012 was due to clerical mistake and not a deliberate act as against the duty liability of ₹ 10,10,590/-, the appellant had paid ₹ 7,10,590/- through cenvat credit amount and an amount of Rs. One Lakh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 applicable to the facts of this case, that thus in view of the judgment of Hon ble Gujarat High Court in the case of Indusar Global Ltd. vs. UOI (supra), the stay order dated 26.11.2014, suffers from an error apparent from record, which has to be rectified. He, therefore, pleaded for modification of the said order dated 26.11.2014. he also cited the recent judgment of Hon ble Delhi High Court in the case of SNE India (P) Ltd vs CCE reported in 2015-VIL-97-Del-CE, where the Tribunal in a similar case of 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 da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , para 6 8 of the Larger Bench in the case of Hindustan Lever Ltd are reproduced below: 6. when a decision rendered by Apex Court is 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, though in the context of decisions of the Apex Court and the Jurisdictional High Courts which are rendered after the order of the Tribunal, the doctrine of per incuriam cannot be invoked, yet there would be error apparent from the record of such order on the reasoning that the superior court declared the law as it always was, and therefore, the 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 de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dance with the provisions of the statute was clearly required permissible under the law and in accordance with the provisions of the statute was clearly required to be effected. Thus, our task is very simple, and we, in view of the decision of the Gujarat High Court in RPG Life Sciences Ltd. (Supra) and the decision of the Madras High Court in V. Guard High Court Industries Ltd. (Supra) , declare that the Larger Bench decision in Gujarat state Fertilizers and Chemicals reported in 2000 (122) ELT 232 (Tribunal-LB) stands overruled. The reference 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 the issue taking into consideration the diverse views of Madras High Court and Gujarat High Court on this issue. 7. We also take note of the fact that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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