2016 (2) TMI 766

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....ts/capital goods and input services and paying Central Excise duty on finished goods. During the period Nov.2007 to Feb.2008 the appellant cleared excisable goods for which duty liability should have been cleared on 5th of Dec.2007 to March 2008. But due to financial crisis they could pay only part of the duty liability from Cenvat account. The balance amount payable through account current remained unpaid mainly due to heavy financial crunch and recession in the market and non-receipt of payment from customers. This short payment of duty was reflected in monthly returns filed with the department. Thereafter the show-cause notice was issued dated 17.10.2010 by the Additional Commissioner of Central Excise, Pune I asking the appellant to sho....

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....on, the show-cause notice, Order-in-Original and Order-in-Appeal which are based upon rule 8(3A) cannot survive and are liable to be set aside as held by the Hon'ble Gujarat High Court in para 4 of the judgment in Shreeji Surface Coatings P. Ltd. (supra). In para 4, the Hon'ble High Court of Gujarat has observed as under:- "4. When the entire showcause notice, order in original and appellate order are based on Sub-rule (3A) of Rule 8, the portion of which came to be struck down, such orders cannot survive. We have narrated facts only to demonstrate that the facts of the present case squarely fall within the portion of the Rule which was declared as ultra vires by the Court. It was only because the petitioner paid interest of barel....