TMI Blog2020 (4) TMI 197X X X X Extracts X X X X X X X X Extracts X X X X ..... actually found that some additional amounts were payable over and above what was declared in their ER returns as duty. Rule 8(3A) does not apply to every case where the department, during the scrutiny of returns, during audit or during investigation finds any additional amount is payable as duty of excise. All such demands will be recoverable by issuing a notice under section 11A of the Central Excise Act, 1944, but they do not get covered under Rule 8(3A) of Central Excise Rules, 2002. The assessee s case is a case of demand under section 11A and is not covered by Rule 8(3A) and hence demand on this ground needs to be set aside - penalty also set aside - appeal allowed - decided in favor of appellant. - Excise Appeal No. 45 of 2012 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 January 2007 77,28,684/- 77,17,233/- 11,451/- -do- 3 May 2007 1,02,61,440/- 99,61,676/- 2,99,764/- Omitted to debit Ed HSE Cess 4 March 2008 1,57,49,808/- 1,57,50,087/- 27,060/-(+279/-) Applied higher rate for one truck; hence excess payment 5 May 2008 1,12,17,584/- 1,10,37,859/- 1,79,725/- Duty in one invoice missed 6 June 2008 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncerned. 4. In addition to the above, the show cause notice also demanded an amount of ₹ 21,72,22,934/- from the appellant being the amount of Central Excise duty already paid by them between 05.01.2007 and 26.12.2009 by utilizing Cenvat credit in cash under Rule 8(3A) of CER, 2002 read with section 11A(2) of Central Excise Act, 1944. Thus the only disputed amount is the demand on account of denial of utilization of Cenvat credit in terms of Rule 8(3A) of CER, 2002. 5. Learned counsel for the appellant would submit that Rule 8(3A) of CER, 2002 has been struck down as ultravires by the Hon ble High Court of Gujarat in the case of Indsur Global Ltd [2014 (310) ELT 833]. An appeal against this order of the Hon ble High Court of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar that it applies to such cases where the assessee had defaulted in payment of excise duty beyond 30 days from the due date. This does not apply to the present case because in their case they have already paid as duty even before the audit whatever they declared as payable. The audit actually found that some additional amounts were payable over and above what was declared in their ER returns as duty. Rule 8(3A) does not apply to every case where the department, during the scrutiny of returns, during audit or during investigation finds any additional amount is payable as duty of excise. All such demands will be recoverable by issuing a notice under section 11A of the Central Excise Act, 1944, but they do not get covered under Rule 8(3A) of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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