TMI Blog2017 (1) TMI 1604X X X X Extracts X X X X X X X X Extracts X X X X ..... ondition contained in sub-rule (3A) of rule 8 for payment of duty without utilizing the cenvat credit till an assessee pays the outstanding amount including interest is declared unconstitutional. Therefore, the portion "without utilizing the cenvat credit" of sub-rule (3A) of rule 8 of the Central Excise Rules, 2002, shall be rendered invalid. The Rule itself has been stuck down as unconstitutional - demand do not sustain - appeal allowed - decided in favor of appellant. - Appeal No. E/3645,3646/2012-EX[SM] - FINAL ORDER NO. 50396-50397 /2017-EX[SM] - Dated:- 11-1-2017 - Hon ble Shri V. Padmanabhan, Member (Technical) Ms. Surbhi Sinha, Advocate- For the Appellant Sh. Dharam Singh, AR- For the Respondent JUDGMENT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at credit account. Such payment of duty using the Cenvat credit has been considered as proper payment of duty. She further submits that the provisions of Rule 8(3A) has been held to be unconstitutional by Hon ble Gujarat High Court in the case of Indsur Global Ltd Vs. Union of India reported as 2014 (310) ELT 833 (Gujarat). Accordingly, she prayed the impugned order set aside and appeal allowed with consequential relief. She also relied upon the following decisions: i. Final Order No. A/53740/2016-SM[BR] dated 20/09/2016 Pioneer laboratories Pvt. Ltd. ii. 2014 (310) ELT 833 (Guj.) Indsur Global Ltd. Vs Union of India iii. 2015 (322) ELT 49 (Mad.) A.R. Metallurgicals P. Ltd. Vs CESTAT Chennai iv. 2015(323) ELT 489 (Mad.) Malladi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lay in the month of November 2008. The question for decision is whether the duty amount to the tune of about ₹ 12 lakhs already paid by the appellant by making use of Cenvat Credit needs to be demanded to be paid in cash/PLA, as has been done by the authorities below. I find that various Hon ble High Courts have taken adverse view of Rule 8 (3A) and have held this Rule to be unconstitutional. In the case of Indsur Global Ltd., the Hon ble Gujarat High Court has held as follows :- 36. In the result, the condition contained in sub-rule (3A) of Rule 8 for payment of duty without utilizing the Cenvat credit till an assessee pays the outstanding amount including interest is declared unconstitutional. Therefore, the portion without ..... X X X X Extracts X X X X X X X X Extracts X X X X
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