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M/s. Leena Organics Pvt. Ltd. Versus CCE & ST, Meerut-II

2015 (12) TMI 798 - CESTAT NEW DELHI

Waiver of pre deposit - whether the appellant, during the forfeiture period i.e. during the period from 6.7.2012 to 7.3.2013, were, in accordance with the provisions of Rule 8(3A) of the Central Excise Rules,2002, required to pay duty without utilizing the cenvat credit - Held that:- In the case of Indsur Global Ltd. (2014 (12) TMI 585 - GUJARAT HIGH COURT), the High Court has gone into the question of constitutionality of the provision of the provisions of Rule 8(3A), which requires an assessee .....

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Stay granted. - E/Stay/54918/2014 in Appeal No.54265/2014-EX(DB) - Misc. Order No. 51813/2015 - Dated:- 5-5-2015 - Mr. Rakesh Kumar, Member (Technical) And Mr. S.K. Mohanty, Member (Judicial) For the Petitioner : Shri Ankur Jain, Advocate For the Respondent : Shri Ranjan Khanna, DR ORDER Per Rakesh Kumar: The facts giving rise to this appeal and stay application are as under:- 1.1 The appellants are manufacturers of Ethyl Acetate and Thinner falling under Chapter 29 and 38 of the Central Excise .....

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However, since the forfeiture period, in terms of Rule 8(3A) of the Central Excise Rules, 2002 had started w.e.f. 6.7.2012, during the period from 6.7.2012 to 7.3.2013, the date on which the entire duty along with interest was paid, the appellant were required to pay duty on the goods cleared by them consignment-wise and without utilizing the cenvat credit. However, since during this period, they have paid ₹ 1,52,74,862/- by utilizing the cenvat credit, the proceedings were initiated again .....

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ty through cenvat credit were deemed to be the clearance made without payment of duty. 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 Ankur Jain, Advocate, ld. Counsel for the appellant, pleaded that during the period of dispute, Smt. Leena Singhal, wife of the director of the appellant company was very sick due to which, the entire work of the company was looked after by the employee .....

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of Rule 8 (3A) of the Central Excise Rules, 2000 requiring the assessee to make payment of duty during forfeiture period, without utilizing the cenvat credit has been held to be to be un-constitutional, that in view of this, the impugned order would not be sustainable, that the appellant have strong prima facie case in their favour and hence, the requirement of pre-deposit of duty demand, interest and penalty may be waived for hearing of their appeals and recovery thereof may be stayed. 4. Shri .....

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t in the above mentioned judgements of the Tribunal and High Courts, it has been held that once the duty payable in respect of a particular month, is not paid by the due date, and failure to pay the duty continues beyond of the period of 30 days from the due date, the provisions of Rule 8(3A) become applicable and according to these provisions of Rule 8(3A), the assessee is required to pay duty, on the goods cleared by him consignment-wise and without utilizing the cenvat credit. He, therefore, .....

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