TMI Blog2018 (11) TMI 1373X X X X Extracts X X X X X X X X Extracts X X X X ..... owed - decided in favor of appellant. - E/20223/2018-SM - Final Order No. 21672/2018 - Dated:- 25-10-2018 - MR. S.S GARG, JUDICIAL MEMBER Shri Cherian Punnoose, Advocate For the Appellant Shri Pakshirajan, Asst. Commissioner(AR) For the Respondent ORDER Per: S.S GARG The present appeal is directed against the impugned order dt. 01/11/2017 passed by the Commissioner(Appeals) whereby the Commissioner(Appeals) has rejected the appeal and upheld the Order-in-Original. 2. Briefly the facts of the present case are that the appellant is a manufacturer of motor vehicle parts and during the month of May 2012 they had short paid the duty to the extent of ₹ 9765/-. The same was not paid within 30 days from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty in time. He further submitted that this issue has been considered by this Tribunal in number of cases and has consistently held that payment of duty through cenvat credit is perfectly in accordance with law. He further submitted that the allegation against the appellant is that he has violated the provisions of Rule 8(3A) of the Central Excise Rules, 2002. He further submitted that Rule 8(3A) has been held as unconstitutional by the High Court of Gujarat in the case of Indsur Global Ltd. Vs. UOI [2014(310) ELT 833]. He further submitted that Rule 8(3A) to the extent requiring the payment of duty without utilizing the cenvat credit during the period of default is held to to be unconstitutional by several other High Courts also. He al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court. Therefore, he submitted that the appellants are not entitled to any benefit. 6. After considering the submissions of both the parties and perusal of the material on record and the decisions relied upon by the appellant, I find that the Division Bench of Delhi Tribunal in the case of GEI Industrial System Ltd. cited supra after considering the various decisions of the High Courts and also the fact that the Supreme Court has granted a Stay Order in the case of Indsur Global Ltd., has come to the conclusion that the ratio adopted by the various High Courts and by the Tribunal in similar set of facts is still binding and has allowed the appeal of the assessee. Therefore, respectfully following the ratio of the Division Bench ..... X X X X Extracts X X X X X X X X Extracts X X X X
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