TMI Blog2015 (10) TMI 1842X X X X Extracts X X X X X X X X Extracts X X X X ..... in the present case is prior to that date. - condition contained in sub-rule (3A) of Rule 8 of CER, 2002 for payment of duty without utilizing the cenvat credit till an assessee pays the outstanding amount including interest is unconstitutional and that the subsequent proceedings initiated by the department for demanding tax was set at naught. - condition contained in Rule 8 (3A) of CER, 2002 for payment of duty without utilization of cenvat credit is contrary to the scheme of availment of cenvat credit under CCR and the said Rule 8 (3A) is arbitrary and violative of Article 14 of the Constitution. Accordingly, the Hon’ble High Court has struck down the Rule 8 (3A) as unconstitutional. The jurisdictional Hon’ble Madras High Court’s ruling i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 00 for a period of two months commencing from 31.08.2000. Further a Show Cause Notice was issued by the Deputy Commissioner and the matter was adjudicated upon and by order dated 21.06.2001 the appellant was directed to pay the duty on the goods cleared in respect of which debit has been made in Cenvat account on consignment basis from the date on which the facility of monthly payments was withdrawn and the extent of the debit to be calculated and the amount to be paid in PLA within 15 days of receipt of the order. Aggrieved by the said order in original dated 21.06.2001 the appellant filed an appeal which was dismissed on 28.05.2002. The appellant later filed an appeal with delay to this Honble Tribunal and the same was dismissed by order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to approach the Honble Tribunal. Hence the present appeal. 2. The orders passed by the Tribunal in the miscellaneous petition in stay order No. 325/2005 dated 01.03.2005 and the modification petition in No. 298/2005 dated 25.04.2005 were challenged in the writ petition. The Hon ble High Court of Madras vide W.P.Nos. 17464,17465/2005 dated 24.05.2005 granted interim stay and to the operation of the order-in-original dated 13.09.2004 and this Tribunal s order dated 25.04.2005. The Tribunal in its order dated 24-01-2006 had dismissed the assessee s appeal for want of compliance under Section 35F of the CEA. The Tribunal vide miscellaneous No. 50/2006 dated 25.01.2006 in view of the Hon ble High Court of Madras order as mentioned above, di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thin two weeks from 29.04.2009 and accordingly, the appellants will not be required to make the pre-deposit as directed by CESTAT. The appellant assessee had subsequently furnished the bank guarantee of ₹ 26.00 lakhs dated 09.05.2009 (date of expiry of BG was on 04.1.2000) 4. The Ld. Advocate S. Durairaj, appeared on behalf of the appellant assessee. 5. The Ld. Counsel submitted that the issue involved in this appeal is as to whether cenvat credit can be utilized for the payment of duty during the defaulted period from April,2002 to March, 2003. During the period of default, the appellants had paid the duty through cenvat credit on consignment basis as admitted in para-12 of the OIO. He further submitted that the issue is square ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of the Hon ble High Court of Madras in the case of Unirols Airtex Vs. CCE, Coimbatore 2013 (296) ELT 449 (Mad.). 7. After hearing both the sides and on perusal of the records, we find that this being a small scale unit, the appellant assessee was paying excise duty on monthly basis as per Rule 173 G of CER, 1944 from 01.04.2000. SCN No. 692/2003 dated 16.06.2003 was issued based on the amendment to Rule 173G (I) (e) w.e.f. 11.02.2001, which was later substituted by Rule 8 of CER, 2001. It cannot be disputed that the provision of Rule 8(4) are pari materia with Rule 173 G (I) (e) and the non-obstantive clause was introduced by insertion of sub-rule 3A in Rule 8 of CER, 2002 only w.e.f. 31.03.2005, while the period in dispute in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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