TMI Blog2021 (9) TMI 973X X X X Extracts X X X X X X X X Extracts X X X X ..... further deems the clearances so made by using cenvat credit as to have been cleared without payment of duty. Pursuant to quashing of Rule 8(3A) by the Hon ble Gujarat High Court and other High Courts, inspite of filing of appeal by the Revenue before the Hon ble Supreme Court, the Government have appreciated the anomaly in the Rules, and have chosen to substitute Rule 8(3A), which provides for payment of interest @ 1% p.m. on such amount of duty not paid, after one month of the due date, for each month and part thereof to be calculated from the due date, for the period during which such default continues - As per Rules of interpretation, a procedural law is always deemed to be retrospective, unless the same is categorically or specifical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess SH Ed. Cess A. Total duty payable 3,87,798/- 7756/- 3880/- B. Duty paid i) Through RG-23A Pt. II on dated 30.06.2013. ii) PLA (through challan) on dated 08.08.2013. 3,47,798/- 40,000/- 0/- 0/- 0/- 3880/- Balance duty payable Nil Nil Nil 3. Rule 8(1) of Central Excise Rules provides that duty on the goods removed from the factory / warehouse during a month shall be paid by the 6th of the following mon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as payable by him in the return within a period of one month from the due date, then the assessee is liable to pay the penalty at the rate of one per cent on such amount of the duty not paid, for each month or part thereof calculated from the due date, for the period during which such failure continues. Explanation: For the purposes of this sub-rule, month means the period between two consecutive due dates for payment of duty specified under sub-rule (1) or the first proviso to sub-rule (1), as the case may be.] 7. The appellant had cleared goods during the period 06.08.2013 to 07.08.2013 by debiting the duty from cenvat credit, amounting to ₹ 2,70,762/- including cess. The details of which is as follows:- (Amount in rupe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 was deposited on 08.08.2013 alongwith interest vide challan. Accordingly, the Revenue issued show cause notice dated 15.05.2014 alleging that in view of the restrictions on usage of cenvat credit as per Rule 8(3A), the appellant is deemed to have cleared the goods during the period without payment of duty of ₹ 2,70,762/-, in contravention of Rule 8(3A) read with Rule 4(1), 8(1), 8(3) of Central Excise Rules. Further, it appeared to Revenue that an amount of ₹ 2,79,762/- is again recoverable from the assessee in cash alongwith interest under Section 11(1) and 11AA of the Act. Further, penalty was also proposed under Rule 25. 9. The show cause notice was adjudicated ex-parte as the appellant did not file any reply to show cau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Supreme Court as reported in 2016 (335) ELT A109(SC). So far the other judgments of the High Courts are considered, they are also based on the ruling in the case of Indsur Global (supra). Being aggrieved, the appellant is before this Tribunal. 12. The appellant have filed written submissions praying for decision on merit. I have perused the same and also heard the learned Authorised Representative appearing for the Revenue. 13. The appellant, in addition to the contention before the Court below have relied on the ruling in the case of Commissioner vs. Sejal Glass Ltd., -2019 (30) GSTL J93 (SC), confirming the ruling of Hon ble Bombay High Court where it was held that whereas rule 8(3A) of Central Excise Rules prohibiting utilisation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us duty for the period of default. Thereafter, again Rule 8(3A) provides for denial of facility of paying duty through cenvat credit, and further deems the clearances so made by using cenvat credit as to have been cleared without payment of duty. 18. I further find that pursuant to quashing of Rule 8(3A) by the Hon ble Gujarat High Court and other High Courts, inspite of filing of appeal by the Revenue before the Hon ble Supreme Court, the Government have appreciated the anomaly in the Rules, and have chosen to substitute Rule 8(3A), which provides for payment of interest @ 1% p.m. on such amount of duty not paid, after one month of the due date, for each month and part thereof to be calculated from the due date, for the period during wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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