TMI Blog2015 (10) TMI 1643X X X X Extracts X X X X X X X X Extracts X X X X ..... clearances is required to pay through cash without utilizing the cenvat credit, Hon ble Madras High Court in this case has not gone into the question of constitutionality of the provision. The Hon ble Gujarat High Court in the case of Indsur Global Ltd. (2014 (12) TMI 585 - GUJARAT HIGH COURT), after going into the question of constitutionality of this provision, has held that the condition contained in Rule 8(3A) regarding payment of duty without utilizing the cenvat credit during the period of default beyond the period of one month from the due date is unconstitutional. Accordingly, we hold that the appellant have strong prima facie case in their favour. Therefore, the requirement of pre-deposit of duty demand, interest and penalty is wai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he due date where the duty has not been paid through PLA are deemed to be the clearances without payment of duty. It is on this basis that the Commissioner of Central Excise by the impugned order confirmed the duty demand of ₹ 61,22,878/- against the appellant along with interest and also imposed penalty of equal amount on the appellant under Section 11 AC. Against this order of the Commissioner, this appeal has been filed along with stay application. 2. Heard both the sides in respect of stay application. 3. Shri Naveen Bindal, Advocate, ld. Counsel for the appellant, pleaded that the impugned order of the Commissioner is not sustainable in view of the judgment of the Hon ble Gujarat High Court in the case of Indsur Global Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of default in discharge of duty liability beyond the period of one month from the due date, the assessee is required to pay duty without utilizing the cenvat credit or whether during this period, he can pay the duty on the clearances made by utilizing the cenvat credit. We find that though on this issue, the Hon ble Madras High Court in the case of Unirols Airtex Vs. Asstt. Commissioner of Central Excise, Coimbatore (supra) has decided the issue against the appellant holding that during the period of default beyond the period of one month form the due date, the duty on the clearances is required to pay through cash without utilizing the cenvat credit, Hon ble Madras High Court in this case has not gone into the question of constitutionali ..... X X X X Extracts X X X X X X X X Extracts X X X X
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