TMI Blog2019 (5) TMI 1345X X X X Extracts X X X X X X X X Extracts X X X X ..... e rendered invalid. The impugned order is set aside - appeal allowed - decided in favor of appellant. - EXCISE APPEAL NO: 1677 of 2011 - A/85808/2019 - Dated:- 18-4-2019 - MR C J MATHEW, MEMBER (TECHNICAL) And DR SUVENDU KUMAR PATI, MEMBER (JUDICIAL) Shri P S Namboodiri, Advocate for the appellant Ms A S Parab, Assistant Commissioner (AR) for the respondent ORDER PER: C J MATHEW This appeal of M/s Torane Ispat Udyog Pvt Ltd pertains to the discharge of duty liability of ₹ 1,94,61,614/-, on clearances effected between 4th July 2010 and 3rd November 2010, through CENVAT credit account even though, owing to default in delayed payment of dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isregarded in the light of the finding therein that 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 utilizing the Cenvat credit of sub-rule (3A) of Rule 8 of the Central Excise Rules, 2002, shall be rendered invalid. and the application of rule 8 of Central Excise Rules, 2002 is, thereby, restricted to that which is not invalid. That the provision relied upon was required to be interdicted has been explained thus 31. This extreme hardship is not the only element of unreasonableness of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was sought to be lapsed. The Supreme Court struck down the rule further observing that if on the inputs the assessee had already paid the taxes on the basis that when the goods are utilized in the manufacture of further products as inputs thereto then the tax on those goods gets adjusted which are finished subsequently. Thus a right had accrued to the assessee on the date when they paid the tax on the raw materials or the inputs and that right would continue until the facility available thereto gets worked out or until those goods existed. We may also recall that in the case of Dai Ichi Karkaria Ltd. (supra) it was reiterated that a manufacture obtains credit for the excise duty paid on raw material to be used by him in the production of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther a wrong choice is made by the Administrator for imposing restriction or whether the Administrator has not properly balanced the fundamental right and the need for the restriction or whether he has imposed the least of the restrictions or the reasonable quantum of restriction etc. In such cases, the administrative action in our country, in our view, has to be tested on the principle of proportionality, just as it is done in the case of the main legislation. This, in fact, is being done by our Courts. 34. By no stretch of imagination, the restriction imposed under sub-rule (3A) of Rule 8 to the extend it requires a defaulter irrespective of its extent, nature and reason for the default to pay the excise duty without a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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