TMI Blog2022 (7) TMI 765X X X X Extracts X X X X X X X X Extracts X X X X ..... ew of the decision of Hon ble Gujarat High Court in ADVANCE SURFACTANTS INDIA LTD VERSUS UNION OF INDIA [ 2017 (8) TMI 594 - GUJARAT HIGH COURT] where it was held that proviso to Sub-Rule (4) of Rule 3 of the Cenvat Credit Rules, which disentitles the manufacturer utlization of Cenvat Credit availed in a particular month for the goods manufactured in the preceding month can be said to be contrary to the law laid down by the Hon ble Supreme Court in the aforesaid decisions as well as contrary to the CENVAT Credit Scheme, and therefore, the same is invalid and unconstitutional and the clarification issued by the Board there seem to be nothing wrong in the appellants discharging the defaulted duty liability as per Rule 8 from their CENVAT account. It is quite evident that the revenue authorities took nearly one year to give consent to the appellant to operate as an LTU. In the meantime as per the show cause notice certain defaults in term of Rule 8, were noticed in the payment of Central Excise duty by the due date for the Month of February 2013 - Rule 12 A (4) of the CENVAT Credit Rules permitted the transfer of CENVAT Credit from unit of the person operating under the LTU sche ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remanded to the original authority for very limited purpose verification of the fact of transfer of CENVAT Credit amount of Rs 43,26,000/- from Plant IX to Plant VII in terms of Rule 12A (4) of the CENVAT Credit Rules, 2004. Except for this limited purpose for which matter is remanded back appeal is allowed on all other accounts - appeal allowed in part - part matter on remand. - Excise Appeal No. 87220 of 2017 - FINAL ORDER NO. A/85629/2022 - Dated:- 15-7-2022 - MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) AND MR. AJAY SHARMA, MEMBER (JUDICIAL) Shri Mihir Mehta, Advocate, for the Appellant Shri Sydney D Silva, Additional Commissioner, Authorised Representative for the Respondent ORDER This appeal is directed against the order in original No 10/SP/COMMR/C Ex Audit/M-I/2017 dated 26.05.2017 of Commissioner Central Excise Audit, Mumbai-I. By the impugned order, the Commissioner has held as follows: 27 ORDER i) I confirm central excise duty of Rs. 4,18,14,846/- (Rupees Four Crores Eighteen lakhs Fourteen thousand Eight hundred Forty Six only) under Rule 8{3A) of Central Excise Rules, 2002 read with Section 11A of Central Excise Act, 1944 as raise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cenvat credit in contravention of Rule 8(3A) of Central Excise Rules, 2002. 2.4 For the period from April 2013 to February-2014 Central Excise duty totally amounting to Rs. 4,13.14,846/- was paid by the assessee through their Cenvat credit account. A show cause notice dated 31.01.2014 was issued to them asking them to show cause as to why:- a. the clearance effected in the month of February 2013 (duty of Rs. 5,00,000/-) and the clearance effected for the period from April-2013 to February 2014 (duty of Rs.4,13,14,846/-) should not be treated as clearances without payment of duty in accordance with the provisions of Rule 8(3A) of Central Excise Rules. 2002; b. the amount of Rs. 4,18,14,846/- (Rs. 5,00,000/- + Rs. 4,13,14,846/-) (Rupees Four crores Eighteen lakhs Fourteen thousand Eight hundred Forty Six only) utilized as Cenvat Credit in contravention of Rule 8 (3A) of Central Excise Rules, 2002 Rule 3(4} of Cenvat Credit Rules, 2004, should not be denied recovered through account current from the assessee under Rule 8{3A) of Central Excise Rules, 2002 read with Section 11A of Central Excise Act, 1944; c. interest at appropriate rate on the said amount should no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'ble Gujarat High Court. In the case of Advance Surfactants India Limited- [2017 (358) ELT 53 (GUJ)] Since the Appellant has fully complied with provisions of Rule 8, the demand made against them invoking Rule 8(3A) is bad in law. Hon'ble High Courts of Gujarat [Indsur Global Limited reported in 2014 (310) E.L.T. 833 (Guj.)], Bombay [Nashik Forge Private Limited-[2019(368) ELT 20 (Bom)]] and Delhi have held that Rule 8(3A) of the Rules is ultra vires and is struck down by the Hon'ble Courts and this Hon'ble Tribunal following the said judgment has allowed the appeals. 3.3 Arguing for the revenue, learned Authorized representative while reiterating the findings recorded in the impugned order submits that.- On scrutiny of the ER 1 filed by Plant VII for February 2013, it is observed that the Appellants has effected clearances CETSH-82129000 valued at Rs.98,78,192/- attracting duty of Rs. 12,20,942/- and CETSH 39159090 valued at Rs.3,14,503/- attracting duty Rs.38,873/-, making total duty to be paid as Rs 12,59,815/-. Against this duty liability they paid Rs 7,29,815/- through the credit account and Rs 30,000/- from their account current. Though ER-1 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll India Pvt. Ltd. The Hon ble Supreme Court has held that when matter pending with SC lower authorities not to decide {2019-TIOL-549-SC-CUS] In C. Excise Appeal No.24 of 2016 and 288 of 2016 before the Hon'ble Bombay High Court in the case of The Principal Commissioner of Central Excise Customs Service Tax- Daman V/s Vikas Vinyl Industries and The Commissioner of Central Excise Customs and Service Tax, Daman Commissionerate V/s Temple Packaging (P) Ltd. while referring to the case of Indsur Global Limited vs. Union of India [2014 (310) E.L.T. 833), has held as under: We keep both the appeals together and treat them presently as adjourned sine die. We grant liberty to both sides to mention them after the Hon'ble Supreme Court delivers its verdict in the pending proceedings. Tribunal had in case of Savita Construction Pvt. Ltd. (2018-TIOL 1207-CESTAT-AHM) and RV Refractories Vs Commissioner of Central Excise Chennai-II (2018-TIOL- 1408 CESTAT-MAD) has remanded to the adjudicating authority to decide the issue on the basis of the outcome of the pending case before the Hon'ble Supreme Court on the appeal filed by the Revenue. 4.1 We have considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the assessee has effected clearances CETSH- 82129000 valued at Rs.98,78,192(Home clearance) attracting duty of Rs. 12,20,942/- and CETSH - 39159090 valued at Rs.3,14,503/- (Home clearance) attracting duty Rs.38,873/-. I observe the assessee has shown amount of Rs.5,30,000/- as paid through GAR 7 and Rs.28,50,905/- as paid in their CENVAT A/c with remark that Rs.15,40,444/ has been paid on account of differential duty. However, I observe that for the payment of Rs.5,00,000/- there is no corresponding GAR 7 shown in the return. 16. I find that the assesee in their reply has submitted that they have transferred credit of Rs.43,26,000/- from their Plant IX factory to Plant VII under provisions of Rule 12 A of Central Excise Rules 2002 . On scrutiny of the ER1 filed by Plant IX factory of the assessee for the month Mar 2013, I notice that there is no mention of any inter unit transfer of credit under Rule 12A as stated by the assessee at relevant Sr No.5. DETAILS OF CENVAT CREDIT TAKEN AND UTILIZED in ER 1 filed. Furthermore, I also observe that in the SELF ASSESSMENT MEMORANDUM at 5 No.7 of the said return there is no reference to any transfer challan being issued under Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it taken on capital goods if such capital goods are removed as such; or (d) an amount under sub-rule (2) of rule 16 of Central Excise Rules, 2002; or (e) service tax on any output service: Provided that while paying duty of excise or service tax, as the case may be, the CENVAT credit shall be utilized only to the extent such credit is available on the last day of the month or quarter, as the case may be, for payment of duty or tax relating to that month or the quarter, as the case may be : 20. Hence it is evident that the assessee have utilized credit available on goods received in March 2013 for discharging duty liability of goods cleared in Feb 2013 , which is in violation of Rule 3(4) of Cenvat Credit Rules, 2004.I observe that Sub-rule (1) of Rule 8 of the Central Excise Rules, 2002 states that the duty of the goods removed from the factory or the warehouse during a month shall be paid by the 6th day of the following month, if the duty is paid electronically through internet banking and by the 5th day of the following month, in any other case. Further I find that Sub-rule (3A), of Rule 8, reads as under : If the assessee defaults in payment of dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court passed the following order : Issue notice returnable within eight weeks. There shall be interim stay of the impugned judgment and order dated 27-3-2015 passed by the High Court of Judicature at Madras in Writ Petition No. 27363 of 2012 till next date of hearing. Tag with SLP (C) No. 28309 of 2015. Therefore the judgment/decisions relied upon by the assessee do not mitigate the action that follow on account of violation of Rule 8(3)A of Central Excise Rules, 2002. 24. I observe that the SCN proposes recovery of interest under Rule 8(3) of the Central Excise Rules, 2002 read with Section 11AA of the Central Excise Act. 1944 and penalty under the provisions of Rule 25 of Central Excise Rules, 2002 read with section 11AC of Central Excise Act 1944. In thiş background I find that the decision in case of M/s Michigan Rubber (India) Ltd. Versus Commissioner of Central Excise, Bhopal vide Final Order No. A/52902/2016-EX(DB), dated 8-7-2016 in Appeal No. E/1228/2009-EX(DB)2016 reported in (340) E.L.T. 528 (Tri. - Del.) CESTAT, Principal Bench, New Delhi is relevant wherein it has been held that there being no provision giving relaxation from payment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he defaulted amount was paid by them by way of debit entry made by them in their CENVAT credit account on 26.03.2013. 4.5 Commissioner has recorded the submissions made by the appellant before him in his order in following manner: WRITTEN SUBMISSIONS BY THE ASSESSEE The assessee vide their reply dtd 17.04.2014 submitted that due to financial crisis, they could not deposit part of the duty amount of Rs.5,00,000/- in respect of the goods cleared in the month of February 2013, on the due date viz. 6th March.2013. They submitted that they were required to pay central excise duty of Rs.12,59,815/- for the goods cleared in the month of February 2013. 9. Out of the amount of Rs.12,59,815/-.they could deposit Rs.7,59,815/- on the due date viz. 6 March 2013. They contended that vide their letter dated 9 March 2012, they submitted an application for the consent of the Chief Commissioner, Large Tax Payers Unit, to accept them as Large Tax Payers Unit, Mumbai. They further stated that vide letter dated 28 February 2013, Chief Commissioner, Large Tax Payers Unit, Mumbai accepted their application and were given Large Tax Payers Unit Membership No, LTU/MUM/-3306. 10. They ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid matter. 4.6 Commissioner has rejected the above submission in para 16, 17 and 18 of the impugned order. He has done so by referring to the ER-1 returns of the appellant (both the transferor and transferee returns for the month relevant months. Appellants have challenged the said finding before us. Relevant Extracts of the ER-1 returns filed by the appellant are reproduced below: Table 1: ER-1 return of the Supermax Private Limited (Plant IX) Month : January 2013 Details of Credit CENVAT EDU_ Cess Sec_EDU _Cess SERVICE _TAX EDU _Cess Sec_ EDU _Cess Opening Balance (Rs) 20596333 321724 153537 1116561 22330 11162 Credit taken on inputs on invoices issued by manufacturers (Rs.) 4027995 80556 40287 0 0 0 Credit taken on inputs on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 0 0 0 0 0 Credit utilized towards Inter Unit transfer of Credit under Rule 10A of CENVAT Credit Rules, 2004 0 0 0 0 0 0 Closing Balance (Rs) 13769124 185157 85278 1116561 22330 11162 Month: February 2013 Opening Balance (Rs) 13769124 185157 85278 1116561 22330 11162 Credit taken on inputs on invoices issued by manufacturers (Rs.) 3255201 65108 32549 0 0 0 Credit taken on inputs on Invoices issued by I or II stage dealers (Rs.) 0 0 0 0 0 0 Credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 0 0 0 0 0 Closing Balance (Rs) 12472583 159222 72311 1116561 22330 11162 Month: March 2013 Opening Balance (Rs) 12472583 159222 72311 1116561 22330 11162 Credit taken on inputs on invoices issued by manufacturers (Rs.) 3332040 66649 33324 963897 19282 9637 Credit taken on inputs on Invoices issued by I or II stage dealers (Rs.) 37170 0 0 0 0 0 Credit taken on inputs on imported inputs (RS.) 13943 0 0 0 0 0 Credit taken on Capital Goods on invoices ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23330 2080458 41612 20799 From the ER-1 returns filed by the Appellant for their Plant-IX, as above it is quite evident the closing balance available with the appellant at the end of January and February 2013, was far in excess of the credit claimed by them to have transferred to Plant-VII as per Rule 12A (4) of the CENVAT Credit Rules, 2004. In fact in their return for the month of March 2013, they have against the head Credit utilized for other payment (Rs) indicated amount of Rs 43,26,500/-. Table 2: ER-1 Return of the Supermax Personal Care Private Ltd (Plant-VII) Month: March 2013 Opening Balance (Rs) 89115 9678 6752 0 0 0 Credit taken on inputs on invoices issued by manufacturers (Rs.) 462633 6 92527 46264 0 0 0 Credit taken on inputs on Invoices issued by I or II stage dealers (Rs.) 5952 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... towards Inter Unit transfer of Credit under Rule 10A of CENVAT Credit Rules, 2004 0 0 0 0 0 0 Closing Balance (Rs) 139526 21170 12892 0 0 0 While making his observations in para 16 and 17 of the impugned order Commissioner has taken into account only the factual matrix as stated in the return of Plant-VII. He has not taken into account the return filed by the Plant-IX , wherein clearly it has been stated that unit has utilized an amount of Rs 43,26,500/- for purposes other than payment of duty on the finished goods and inputs cleared as such. While doing so he has also ignored the document CENVAT CREDIT TRANSFER UNDER RULE 12 A (4) of 2004., CHALLAN No 01/2012-13 dated 26.03.2013 issued by the Plant-XI transferring this amount to Plant VII. Commissioner has not recorded any findings in respect of any of these documents. If these were taken into account by him his findings as recorded in para 17 and 18 would not have been the same. However we dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the outstanding amount along with interest at the rate specified by the Central Government vide notification under Section 11AA 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 outstanding amount. Sub-rule (3A), a portion of which is under challenge before us, as it stood at the relevant time, reads as under : If the assessee defaults in payment of duty beyond thirty days from the due date, as prescribed in sub-rule (1), then notwithstanding anything contained in said sub-rule (1) and sub- rule (4) of Rule 3 of CENVAT Credit Rules, 2004, the assessee shall, pay excise duty for each consignment at the time of removal, without utilizing the CENVAT credit till the date the assessee pays the outstanding amount including interest thereon and in the event of any failure, it shall be deemed that such goods have been cleared without payment of duty and the consequences and penalties as provided in these rules shall follow. As per this sub-rule, in case of an assessee who has defaulted in payment of duty beyond thirty days from the due date, has to pay excise duty for each consignment at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lt period as per sub-rule (3) of Rule 8 continues. Sub-rule (3A) is basically a mechanism for stringent recovery and does not create a new liability unless this mechanism itself is breached. In such a mechanism to provide for withdrawal of CENVAT credit facility for paying the duty borders to creating a penalty. Insisting on an assessee in default to clear all consignments on payment of duty would be a perfectly legitimate measure. However, to insist that he must pay such duty without utilising CENVAT credit which is nothing but the duty on various inputs already paid by him would be a restriction so harsh and out of proportion to the aim sought to be achieved, the same must be held to be wholly arbitrary and unreasonable. We may recall, the delegated legislature in its wisdom now dismantled this entire mechanism and instead has provided for penalty at the rate of 1% per month on delayed payment of duty. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r High Court as it is the law of land and binding upon it. Nothing has been shown to us as to why we should not follow the decision of our Court in Valson Dyeing (supra) and Godavaridevi Saraf (supra). No submission has been made before us as to why the decision of the other High Courts declaring Rule 8(3A) of the Central Excise Rules, 2002 unconstitutional, should not be accepted by this Court. 4.8 By referring to certain decision learned Authorized Representative emphasized before us that these matters should be remanded back to the original authority for the final decision after the decision of Hon ble Apex Court in SLP/ Appeal filed by the revenue against the decision of the Hon ble High Court of Gujarat, or else the matter be kept in abeyance for the same reason. However we are not in agreement with the arguments advanced by the authorized representative as the said argument has been rejected by the Hon ble Bombay High Court in case of Twenty First Century Wires Rods Ltd [2019 (26) G.S.T.L. 478 (Bom.)] stating as follows: 5. No distinguishing features in these two cases with above cases in law and/or facts has been shown to us, which would justify our taking a differe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s whether the payment of Rs 5,00,000/- the amount of defaulted duty in terms of Rule 8 for the month of January 2013, could have been paid through the CENVAT Account the appellants. In terms of the Proforma of ER-1 reproduced above and the provisions of Rule 8, there appears to be no bar created on utilization of the CENVAT Credit for the payment of defaulted duty. However proviso to Rule 3 (4) of the CENVAT Credit Rule, 2004 provided as follows: (4) The Cenvat credit may be utilized for payment of - (a) any duty of excise on any final product; or (b) an amount equal to Cenvat credit taken on inputs if such inputs are removed as such or after being partially processed; or (c) an amount equal to the Cenvat credit taken on capital goods if such capital goods are removed as such; or (d) an amount under sub-rule (2) of Rule 16 of Central Excise Rules, 2002; or (e) service tax on any output service : Provided that while paying duty of excise or service tax, as the case may be, the Cenvat credit shall be utilized only to the extent such credit is available on the last day of the month or quarter, as the case may be, for payment of duty or tax relating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oting from duty payable under Section 11A. Duty under Rule 8 is paid after self determination by the assessee unlike Duty payable under Section 11A where generally the duty is determined by the Central Excise officer and the payment is mandated after such determination. There is no time limit prescribed under Section 11A i.e., monthly or quarterly unlike the date prescribed under Rule 8 (i.e., 5th of the next month). Therefore, the restriction on the utilization of the cenvat credit accruing subsequent to the last date of the month or quarter in which the arrears arise, is not applicable to the demands confirmed under Section 11A of the Central Excise Act, 1944. In view of the above clarification issued by the Board there seem to be no requirement, that the arrears that have arisen under Rule 8 were required to be paid in cash only, utilization of the CENVAT Credit for payment of the said arrears is permissible, subject to the condition that the balance was available in the account of the appellant. 4.12 Hon ble Gujarat High Court has in the case of Advance Surfactant [2017 (358) ELT 53 (Guj)] has held this proviso to be unconstitutional stating as follows: Considering ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iples of Cenvat Credit Rules. At this stage, it is required to be noted that as per catena of decisions of the Hon ble Supreme Court as well as this Court and other High Courts, Cenvat Credit is indefeasible and there is no correlation of the raw-material and the final product. It is not as if credit could be taken on a final product, which is manufactured out of a particular raw material to which the credit was related. The credit may be taken against excise duty on the final product manufactured on the very day that it becomes available. Thus, as such, credit under the Cenvat Scheme is as good as tax paid . If any decision is needed on the aforesaid decision of the Hon ble Supreme Court in the case of Dai Ichi Karkaria Ltd. (supra) and Eicher Motors Ltd. (supra) are required to be referred to. In the aforesaid decision, it is specifically held that utilization of legally availed Cenvat credit is a right vested in the manufacturer the moment duty paid inputs or input services are received by him because there is no one to one correlation between input/inputs services on one hand and the final excisable product on the other hand. Therefore, proviso to Sub-Rule (4) of Rule 3 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unit of the same person. Appellant Plant-IX, was having sufficient credit balance of Rs in their CENVAT Account at the close of the February 2013. If they the appellant request to operate under the LTU scheme was allowed during any month prior to the month in which default occurred, they would have transferred this balance to their Plant -VII and would have utilized the same for payment of the duty. In fact appellant s claim that they transferred this amount from their Plant -IX after being accorded the permission to join LTU on 28.02.2013. They utilized this transferred credit for payment of the defaulted duty for the month of February 2013. The delay in according the permission to operate as LTU, was primary reason for the delay in transfer of available credit from the Plant -IX to Plant-VII. Hon ble Delhi High Court has in similar circumstances held as follows: 2. The brief facts are that the liability of the appellant for the month of April, 2012 - payable by 5-3-2012 was Rs 10,10,590/- whereas the Cenvat credit was utilized to the extent of Rs 7,10,590/- and Rs. 1,00,000/- through PLA. As such there was short payment of about Rs. 2,00,000/-. Undisputedly, the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncerned Commissioner. 4.16 It is interesting to note that the show cause notice raises the demand by invoking Rule 8(3A) of Central Excise Rules, 2002 read with Section 11A of Central Excise Act, 1944. Adjudicating authority has confirmed the demand under the same provisions. If that is so as per para 5 of the Board Circular of 2012, referred to by us earlier after confirmation of the demand these demands can be paid by utilization of the CENVAT Credit. 4.17 Plain reading of Rule 8 (3A) as it was then would clearly show that it is not amenable to Section 11A of the Central Excise Act, 1944. Rule itself declares that in cases where the rule apply, the clearances are to be made on payment of duty in cash and on consignment basis. In case of default from the same the goods will be treated to be cleared without payment of duty and consequences as per law will follow. By making the demand as above nearly one year later, for the clearances made without payment of duty revenue was not only soft pedaling the issue but was permitting the clearance without payment of duty. The natural consequence of the clearances made without payment of duty was to seize and confiscate all the goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... settled law that what is not allowed directly cannot be allowed/claimed indirectly. Board s Circular dated 28th March, 2012 will not be applicable in view of reasons stated earlier. We, therefore, hold that the appellants are required to pay an amount of Rs. 8,00,09,346 which is equivalent to the Cenvat credit utilized during the period 6-12- 2010 to 4-7-2011 in cash. They will, however, be free to take Cenvat credit of equivalent amount and utilize it for future clearances. Learned Counsel has cited certain judgments of this Tribunal. In view of the above analysis as also the fact that these were delivered before the Hon ble Madras/Karnataka High Court judgments, we do not consider it necessary to discuss these. This decision was rendered by the tribunal following the decision of Single Judge of Hon ble Madras High Court in case of Unirols Airtex [2013 (296) ELT 449 (Mad)]. 4.19 A division bench of Madras High Court has in case of Malladi Drugs and Pharmaceuticals Ltd, concurred with the decision of the Hon ble Gujarat High Court stating as follows: 5. It is not the case of the Department in this batch of writ petitions that the petitioners-assessees have illegally o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner of Central Excise, 2014 - TIOL - 2211 - HC-AHM - CX, has held as follows :- 4. When the statutory basis for issuance of a show cause notice and raising tax demand is knocked down, the very proceedings would have to be struck down. 5. Learned counsel Shri Oza for the revenue, however, submitted that during the pendency of this petition, the adjudicating authority passed the final order which has not been challenged. He drew our attention to the later portion of the said decision in case of Indsur Global Ltd. (supra) in which this Court even while striking down the portion of sub-rule (3A) of Rule 8, did not disturb the orders passed by the Revenue authorities as upheld by the Tribunal, since such dispute had achieved finality. Counsel would urge that in the present case also the same course should be adopted. 6. In our opinion, however, there is vital difference between the two sets of facts. In the present case, the petitioner had raised the challenge to the statutory provisions even before the Adjudicating Authority had taken a final decision. He had, along with rule, also challenged the show cause notice. In the case of Indsur Global Ltd. (supra) the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;ble High Court of Gujarat, Rule 8(3A) would imply that if the assessee defaults in payment of duty beyond 30 days from the due date, the assessee shall pay excise duty for each consignment at the time of removal till the date the assessee pays the outstanding amount including interest thereon and in the event of any failure, it shall be deemed that such goods have been cleared without payment of duty and the consequences and penalties as provided in these rules shall follow. Thus, as per rule 8(3A) and the judgment of the Hon'ble Gujarat High Court, the appellant was expected to clear the goods for each consignment at the time of removal till the outstanding amount including interest is paid. It is not in dispute that for the demands made, the appellant has not paid the duty consignment-wise either through cenvat credit account or through PLA. Obviously they have violated Rule 8(3A) and the said rule provides that it shall be deemed that such goods have been cleared without payment of duty and consequences and penalties as provided in these rules shall follow. And in para 4.4, dropped the demand of duty made treating the payments made through CENVAT account as proper pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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