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2015 (8) TMI 899 - GUJARAT HIGH COURT

2015 (8) TMI 899 - GUJARAT HIGH COURT - TMI - Disallowance of CENVAT Credit - Violation of Rule 8(3A) of the Central Excise Rules, 2002 read with Section 11Aof the Central Excise Act, 1944 - Imposition of interest and penalty - Held that:- Judgement of the Division Bench of this Court in case of Indsur (2014 (12) TMI 585 - GUJARAT HIGH COURT) is decided almost around nine months ago. So far the department has not preferred any appeal to challenge the said decision of this Court in the Honourable .....

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ppeal - Decided against Revenue. - Tax Appeal No. 453 of 2015 - Dated:- 11-8-2015 - A. J. Desai And A. G. Uraizee, JJ. For the Appellant : Mrs VD Nanavati, Adv. For the Respondent : None JUDGMENT (Per : Honourable Mr. Justice A. G. Uraizee) 1. The Revenue has filed this appeal under section 35-G of the Central Excise Act, 1944 to challenge Order No. A/10035/2015 dated 8/1/2015 passed by the Customs, Excise Service Tax Appellate Tribunal, West Zonal Bench, Ahmedabad in Appeal No. E/1589/2009 wher .....

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e limitation period to file appeal was still not over? b. Whether the Tribunal was right in adjudicating the matter relying on a judgement striking down a provision of law when the said judgement was stayed for a further period to enable the department to file an appeal before the Hon'ble Supreme Court of India especially when the challenge was to a statutory provisions which may affect the government exchequer with regards to collection of revenue? c. Whether the action of the department to .....

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) of Central Excise Rules, 2002unconstitutional and demand for payment of duty from cenvat account current void when the issue of constitutionality of Rule 8(3A) of Central Excise Rules, 2002 has not yet attained finality in view of the fact that order of Hon'ble High Court of Gujarat in the case of M/s Indsur Global Ltd reported in 2014 (310) E.L.T. 833 (Guj) has not yet attained finality as the department is in the process of approaching the Hon'ble Apex Court? f. Whether Hon'ble T .....

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ing the Hon'ble Apex Court, after being stayed upto 15.01.2015? g. Whether Hon'ble Tribunal can treat Rule8(3A) of Central Excise Rules, 2002unconstitutional and imposition of penalty under Rule 25 of the Central Excise Rules, 2002 void when the issue of constitutionality of Rule 8(3A) of Central Excise Rules, 2002 has not yet got finality in light of the fact that order of Hon'ble High Court of Gujarat in the case of M/s Indsur Global Ltd reported in 2014 (310) E.L.T.833 (Guj) has n .....

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tice was issued for disallowing the duty paid from the cenvat account in violation of Rule 8(3A) of the Central Excise Rules, 2002 read with Section 11Aof the Central Excise Act, 1944 along with interest and impose penalty. Adjudicating authority confirmed the demand and imposed penalty. Commissioner (Appeals) set aside the adjudication order." 4. We have heard learned advocate Mrs. V. D. Nanavati appearing for the appellant. Mrs. Nanavati, learned advocate appearing for the appellant would .....

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