TMI Blog2018 (6) TMI 1347X X X X Extracts X X X X X X X X Extracts X X X X ..... that payment through CENVAT credit is not bad in law - appeal allowed - decided in favor of appellant. - E/20523/2018-SM - Final Order No. 20831 / 2018 - Dated:- 18-6-2018 - Hon'ble Mr. S. S. Garg, Judicial Member Mr. S. Loknath, CA For the Appellant Mr. Pakshi Rajan ( AR ) For the Respondent ORDER Per : S. S. Garg The present appeal is directed against the impugned order dated 21.11.2014 passed by the Commissioner (Appeals), whereby the Commissioner (A) has rejected the appeal of the appellant but drop the penalty imposed under Rule 25 of the Central Excise Rule. 2. Briefly the facts of the present case are that the appellant are engaged in the manufacture of excisable goods, viz., the Floor polishing, Room ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding the duties on the clearances made with effect from February 2012 to 21st June 2012, along with the interest thereon. Also penalty was proposed under Section 11AC of the CEA and under Rule 25 of the CER; also penalty was proposed on the Managing Director of the Unit under Rule 26 of the CER. The original authority after following the due process confirmed the demand along with interest and imposed penalty as proposed in the show-cause notice. Aggrieved by the said order, appellant filed appeal before the Commissioner who confirmed the demand but drop the penalty under Rule 25 of the Central Excise Rules. 3. Heard both the parties and perused the material on record. 4. Learned counsel for the appellant submitted that the impugned o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a serious affront to his right to carry on his trade or business guaranteed under Article 12(1)(g) of the Constitution. On both the counts, therefore, that portion of sub-rule (3A) of Rule must fail. The situation can be looked at slightly different angle. With or without the provisions of sub-rule (3A), liability to pay interest for the default period as per sub-rule (3) of Rule 8 continues. Sub-rule (3A) is basically a mechanism for stringent recovery and does not create a new liability unless this mechanism itself is breached. In such a mechanism to provide for withdrawal of CENVAT credit facility for paying the duty borders to create a penalty. Insisting on an assessee in default to clear all consignments on payment of duty would be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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. 5. On the other hand, the learned AR defended the impugned order and submitted that the department has filed an appeal before the Apex Court and the matter is pending before the Apex Court for final decision regarding the constitutional validity of Rule 8 (3A) of the CENVAT Rules. 6. After considering the submissions of both the parties and perusal of the material on records and the decisions relied upon by the appellant, I am of the considered view that the other High Courts have also followed the decision of the Hon ble Gujarat High Court in the case of Indsur Glo ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
