TMI Blog2016 (8) TMI 348X X X X Extracts X X X X X X X X Extracts X X X X ..... Metallurgicals P Ltd. Vs. CESTAT, Chennai [2015 (5) TMI 661 - MADRAS HIGH COURT] and also followed by the Tribunal in the case of Neesa Infrastructure Ltd. Vs. CCE and Om Shakthi Hydraulics Pvt. Ltd. Vs. CCE, Bangalore-II [2016 (5) TMI 838 - CESTAT BANGALORE], the impugned order is unsustainable in law and set aside. - Decided in favour of appellant with consequential relief - E/692/2012-SM - Final Order No. 20457/ 2016 - Dated:- 24-6-2016 - Shri S. S. Garg, Judicial Member For the Appellant : Shri Pradyumna G.H., Advocate For the Respondent : Shri Mohd. Yusuf, AR ORDER Per S. S. Garg The present appeal is directed against the order of the Commissioner (Appeals) whereby the learned Commissioner (Appeals) has uphel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een Thousand Four Hundred and Seventy Two only) paid by the appellant utilizing the cenvat credit during the default period was also demanded along with interest along with the penalty under Rule 25. The appellant controverted the allegations in the show-cause notice but the Assistant Commissioner confirmed the demand of central excise duty amounting to ₹ 2,16,472/- (Rupees Two Lakhs Sixteen Thousand Four Hundred and Seventy Two only) to be recovered in cash under Rule 8(3A) of Central Excise Rules read with Section 11A of the Central Excise Act and also demanded interest and imposed the penalty of ₹ 2,16,472/- (Rupees Two Lakhs Sixteen Thousand Four Hundred and Seventy Two only) in terms of Rule 25. Thereafter appellant filed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requiring the assesee to pay duty without utilizing cenvat credit which is a duty on various inputs already paid him is harsh, wholly arbitrary and unreasonable; The rule is beyond the rule making power of sub-ordinate legislature under Section 37 of the Central Excise Act, 1944; The rule leads to a situation where it would be virtually impossible for an assessee to get out of his financial difficulties by preventing the assessee from availing cenvat credit of duty already paid to the government, The rule does not make any distinction between the willful defaulters and by clubbing of all the cases of default and meting out the same treatment and imposing stringent condition of making excise duty payment without availing cenv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gments cited at bar. In view of the judgment of the Hon ble High Court of Gujarat in the case of Indsur Global Ltd. cited supra which is subsequently followed by the same High Court in the case of Shreeji Surface Coatings Pvt. Ltd. cited supra and thereafter followed by the Madras High Court in the case of A.R. Metallurgicals P Ltd. and also followed by the Tribunal in the case of Neesa Infrastructure Ltd. and Om Shakthi Hydraulics Pvt. Ltd. vide Final Order No.20325/2016 dated 12.05.2016, in my considered opinion the issue is no more res integra and stands settled in favour of the appellant. The judgment cited by the learned AR is not a valid law in view of the judgments of the Hon ble High Court cited supra. Therefore, respectfully follow ..... X X X X Extracts X X X X X X X X Extracts X X X X
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