TMI Blog2015 (10) TMI 1542X X X X Extracts X X X X X X X X Extracts X X X X ..... ka High Court in the case of Manjunatha Industries Vs. Commissioner of C. Ex. (Appeals-I), Bangalore (2013 (4) TMI 534 - KARNATAKA HIGH COURT) have, taking into the account the provisions of Rule 8 (3A) held that during the period of delay in discharge of monthly duty liability for a particular month beyond the period of one month from due date, the provisions of Rule 8 (3A) become applicable and the duty on the goods cleared during this period is required to be paid without utilizing the CENVAT Credit, the High Courts have not gone into the question of constitutionality of this provision. - When sub-rule 3 (A) of Rule 8 of the Central Excise Rules, 2002 has been struck down as unconstitutional by two High Courts, in our view, Commissioner' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstead of paying on monthly basis and that too without utilizing the CENVAT Credit. Since this forfeiture period had started from 6/6/2012 which continued till 18/12/2012 and since during this period, the appellant had paid certain duty by utilizing the CENVAT Credit, a show cause notice was issued to the appellant for payment of that duty through PLA along with interest, and also for imposition of penalty on them as according to the provision of Rule 8 (3A) clearance of goods during the forfeiture period by payment of duty through CENVAT Credit account is deemed to be as the clearances made without payment of duty and all the consequences of the Central Excise Rules, 2002 in this regard would follow. The matter was adjudicated by the Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... required to pay the duty consignmentwise and without utilizing the CENVAT Credit and has held that this provision requiring the payment of duty without utilizing the CENVAT Credit during the forfeiture period is unconstitutional; that though Hon'ble Madras High Court in the case of Unirols Airtex Vs. Assistant Commr. Of Central Excise- Coimbatore reported in 2013 (296) 449 MAD has held that during the forfeiture period, the duty is required to be paid consignmentwise and without utilizing the CENVAT Credit, in view of the provision of Rule 8 (3a), but the Madras High Court in that case has not gone into the question of constitutionality of the provisions of Rule 8 (3A); and that when the provisions of Rule 8 (3A) requiring payment of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty in respect of the goods cleared during this month only through PLA without utilizing the CENVAT Credit and whether penalty under Rule 25 of the Central Excise Rules, 2002 would be attracted. Both the sides agree that Hon'ble Gujarat High Court in the case of Indsur Global Limited Vs. Union of India (Supra) has gone into the constitutional validity of the provisions of sub rule 3 (A) of Rule 8 of the Central Excise Rules and has specifically held that requirement of this sub-rule to pay duty without utilizing CENVAT Credit during the period of delay in discharge of duty liability for a particular month, which is beyond the period of one month from the due date, is unconstitutional; and though Hon'ble Madras High Court in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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