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TMI Blog2020 (1) TMI 189X X X X Extracts X X X X X X X X Extracts X X X X ..... payment of duty and consequent denial of utilization of Cenvat credit under Rule 8(3A) of the Central Excise Rules, 2002 during the period September, 2009 to August, 2010. 3. The appellant is a manufacturer of LPG Cylinders and is registered with the Central Excise department and has been paying excise duty accordingly. They have also been availing the benefit of Cenvat credit as per Cenvat Credit Rules (CCR), 2004. For the period September, 2009, the appellant short paid a duty of Rs. 2,01,749/-. Subsequently, the appellant also short paid the duty during the months of November 2009, December 2009 and January 2010. By March 2010, the appellant paid all the short paid duties. 4. Rule 8 of Central Excise Rules, 2002 deals with the manne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty liability shall be deemed to have been discharged only if the amount payable is credited to the account of the Central Government by the specified date. (2) The duty of excise shall be deemed to have been paid for the purposes of these rules on the excisable goods removed in the manner provided under subrule (1) and the credit of such duty allowed, as provided by or under any rule. (3) If the assessee fails to pay the amount of duty by due date, he shall be liable to pay the outstanding amount along with interest at the rate specified by the Central Government vide notification under section 11AB of the Act on the outstanding amount, for the period starting with the first day after due date till the date of actual payment of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... long with interest under section 11AB. Penalty was also proposed to be imposed under Rule 25 of Central Excise Rules, 2002 on the company as well as on the Managing Director of the appellant company. 6. Learned counsel for the appellant submits that the basis for the entire show cause notice is the violation of Rule 8(3A) of Central Excise Rules, 2002. This rule has been struck down as ultra vires of the Constitution by the Hon'ble High Court of Gujarat in the case of Indsur Global Ltd [2014 (310) ELT 833 (Guj)]. It has also been struck down by the Hon'ble High Court of Madras in the case of Malladi Drugs & Pharmaceuticals Pvt Ltd and others disposing of a batch of writ petitions as reported in 2015 (323) ELT 489 (Mad.). The Hon'ble High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3) TMI 1599 (Delhi HC)] in which it has been held that staying or an order or the judgment by a lower court or authority does not deface the underlying basis of the judgment i.e., its reasoning and therefore, the ratio would still apply. Therefore, he would urge that despite the stay by the Hon'ble Apex Court, the ratio of the judgment of Hon'ble High Court of Gujarat applies. 8. Further, he would argue that even if the judgment of the Hon'ble High Court of Gujarat in the Indsur Global Ltd (supra) is not considered the remaining judgments of the four Hon'ble High Courts of Gujarat, Madras, Bombay and Punjab & Haryana would also apply to their case as there is no contrary judgment by the jurisdictional High Court of this bench. 9. Per co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore urge that it is now a well settled position that once a decision or order of a Court is stayed by or an appeal against the same has been admitted by a superior court, the same is in jeopardy and cannot form the ratio decidendi. 12. We have considered the arguments on both sides and perused the records. We find the entire issue revolves around the vires of Rule 8(3A) of Central Excise Rules, 2002. In the case of Indsur Global Ltd (supra) the Hon'ble High Court of Gujarat has struck it down as unconstitutional. This judgment of the Hon'ble High Court of Gujarat has been stayed by the Hon'ble Apex Court. Similar decision was taken by the Hon'ble High Court of Gujarat in the case of Shreeji Surface Coatings Pvt Ltd (supra) and it does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench of Hon'ble Supreme Court in the case of West Coast Paper Mills (supra) to assert that once an appeal has been admitted before the Hon'ble Supreme Court, the judgment of the High Court or Tribunal is in jeopardy and cannot be followed. We find that this judgment was of the year 2004. What needs to be decided in this factual matrix is where there are judgments by four different High Courts holding Rule 8(3A) as ultra vires and there is no judgment of any High Court upholding it and where the appeals against these judgments have been admitted and are under consideration of the Hon'ble Apex Court, whether the ratio of these judgments bind this tribunal or otherwise. We find that the last in the series of judgments was passed by the Hon'bl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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