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M/s Sterling Lab Versus The Commissioner of Central Excise, Chennai-III

2015 (8) TMI 682 - MADRAS HIGH COURT

Waiver of pre deposit - delayed payment of duty - restriction on utlization of CENVAT Credit - Held that:- Gujarat High Court in the case of Indsur Global Ltd. vs. Union of India, reported in [2014 (12) TMI 585 - GUJARAT HIGH COURT] wherein the Gujarat High Court declared as unconstitutional the 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. It is also submitted that following .....

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V Subramanian Associates For the Respondent : Mr T Chandrasekar JUDGMENT ( Judgment of the Court was delivered by R. Sudhakar, J.) This Civil Miscellaneous Appeal filed by the assessee is as against the Stay Order passed by the Customs, Excise and Service Tax Appellate Tribunal in ordering pre-deposit. The assessee has raised the following substantial questions of law in this appeal: "1. Whether when the interest on the defaulted amounts has been already paid along with the defaulted amount .....

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he case of the assessee is as follows: "The assessee manufactures excisable goods. During the period between April 2007 and October 2007 and again during the period between January 2008 and March 2008, the assessee defaulted in payment of excise duty payable net of CENVAT credit available to them for each of the months. As per provisions in Rule 8 (3A) of the said Rules, when such default persists beyond 30 days from the due date, an assessee is not eligible to utilize CENVAT credit availab .....

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al to the excise duty paid using CENVAT Credit during the default period along with interest and penalties. After adjudication, the Commissioner of Central Excise, Chennai III Commissionerate, Chennai, by the order dated 17.08.2009, made in Order-in-Original No: 20/2009, confirmed the demand of ₹ 4,17,78,147/- along with appropriate interest and penalty equal to the demand. The assessee submitted that they have paid all the defaulted amount by 06.06.2008 and that the interests on the defau .....

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such period cannot be considered as appropriate discharge of duty liability so long as default persists. Therefore, the appellant is required to pay interest on duty liability paid through CENVAT credit during defaulting period from the date of each clearance till the date on which they came out of default. The appellants are directed to calculate such interest and pay such interest as predeposit along with penalty of ₹ 5,000/- (Rupess five thousand only) within 6 weeks and submit a copy o .....

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appearing for the Department and perused the materials made available on record. 6. The first and foremost contention of the learned counsel appearing for the assessee is that subsequent to the impugned order passed by the Tribunal, a decision has been rendered by the Gujarat High Court in the case of Indsur Global Ltd. vs. Union of India, reported in 2014 (310) E.L.T. 833 (Guj.) wherein the Gujarat High Court declared as unconstitutional the condition contained in sub-rule (3A) of Rule 8 for p .....

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