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2016 (8) TMI 348 - CESTAT BANGALORE

2016 (8) TMI 348 - CESTAT BANGALORE - TMI - Demand - Default in monthly payment of duty which was paid belatedly - Contravention of provisions of Rule 8(3A) of Central Excise Rules 2002 - Held that:- the issue is no more res integra and stands settled in favour of the appellant. By following the law laid down by the Honb'le High Court of Gujarat in the case of Indsur Global Ltd. Vs. Union of India [2014 (12) TMI 585 - GUJARAT HIGH COURT], which was subsequently followed by the same High Court in .....

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cided 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 upheld the Order-in-Original dated 20.07.2011 ordering recovery of duty of ₹ 2,16,472/- (Rupees Two .....

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s in terms of Cenvat Credit Rules 2004. The Central Excise Department proceeded against the appellant vide show-cause notice dated 03.01.2011 on the allegation that the appellant has defaulted in the monthly payment of excise duty to the tune of ₹ 1,47,032/- (Rupees One Lakh Forty Seven Thousand and Thirty Two only) for the month of December 2009 and the same has been paid only on 07.05.2010 along with interest amounting to ₹ 6,968/- (Rupees Six Thousand Nine Hundred and Sixty Eight .....

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ring 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 .....

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ering the submissions of the party and also ignoring the precedent decisions of the Tribunal and the High Court. He further submitted that an amount of ₹ 2,16,472/- (Rupees Two Lakhs Sixteen Thousand Four Hundred and Seventy Two only) has been demanded from the appellant in cash in respect of the fact that an equivalent amount has been admittedly paid by them using cenvat credit. He further submitted that Rule 8(3A) under which the duty has been demanded was challenged being violative of t .....

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t to the assessee s right to carry out his trade or business guaranteed under Article 19(1)(g) of Constitution of India; The rule 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 g .....

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Hon ble Gujarat High Court in the case of Shreeji Surface Coatings Pvt. Ltd. Vs. Union of India reported in [2015 (320) E.L.T. 764 (Guj.)] wherein the Hon ble High Court relying on its earlier decision in the case of Indsur Global Ltd. held that the show-cause notice, Order-in-Original and the appellate order which was based on Rule 8(3A) are invalid and cannot survive. Similarly the High Court of Madras in the case of A.R. Metallurgicals P Ltd. Vs. CESTAT, Chennai reported in [2015 (322) E.L.T .....

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