TMI Blog2021 (4) TMI 625X X X X Extracts X X X X X X X X Extracts X X X X ..... artment for recovery of the disputed demand which course is clearly impermissible in law in view of the judgments in the case of SANGHI POLYESTERS LTD. VERSUS SUPERINTENDENT OF C. EX., HYDERABAD [ 2009 (11) TMI 284 - ANDHRA PRADESH HIGH COURT] , M/S SHREEMATHA PRECISION COMPONENTS, M/S JINALLOY STEEL INDUSTRIES VERSUS THE COMMISSIONER OF CENTRAL EXCISE, THE SUPERINTENDENT OF CENTRAL EXCISE [ 2015 (9) TMI 351 - KARNATAKA HIGH COURT] , and UNIROLS AIRTEX REP. BY ITS PROPX:MEENA BOOPALAN VERSUS THE ASSISTANT COMMISSIONER OF CENTRAL EXCISE [ 2013 (8) TMI 614 - MADRAS HIGH COURT] . Show Cause Notice under section 11A of the Act read with Rule 14 of the CENVAT Credit Rules, 2004 is the foundation of any proceeding and thus mandatory for demand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce with Rule 8(1)/(3) of the Central Excise Rules, 2002, the Appellant could not have discharged duty from CENVAT Credit in contravention of the provisions of Rule 8(3A) of the Central Excise Rules, 2002, and further, duty of ₹ 53,31,169/- paid from PLA on monthly basis should have been discharged under Rule 8(3A) on consignment basis during the period of forfeiture of the facility of monthly payment of duty. 3. The learned Advocate for the Appellant submits that in the instant case the proceeding is initiated without issuance of Show Cause Notice under Section 11A of the Central Excise Act, 1944/Rule 14 of the CENVAT Credit Rules, 2004, and therefore, the entire proceeding is ab initio void. In support of his submissions, he reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vice for recovery of arrears as in the instant case. 6. Learned Authorized Representative for the respondent Revenue supports the impugned order. 7. Heard both sides through video conferencing and perused the appeal records. 8. We find that the Hon ble Gujarat High Court in the case of Indsur Global Ltd. Vs. UOI cited supra has declared the words without utilizing CENVAT credit under Rule 8(3A) as ultra vires which means that the assessee can discharge duty by utilizing CENVAT Credit which is what exactly has been done in the instant case by the Appellant. 9. We find that the said judgment has been followed by the Hon ble Calcutta High Court in the case of Goyal MG Gases Pvt. Ltd. Vs. UOI cited supra which is not stayed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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