TMI Blog2023 (3) TMI 1210X X X X Extracts X X X X X X X X Extracts X X X X ..... further declared Rule 8(3A) as invalid which is not stayed by the Hon ble Supreme Court. Hon ble Gujarat High Court in the case of INDSUR GLOBAL LTD. VERSUS UNION OF INDIA 2 [ 2014 (12) TMI 585 - GUJARAT HIGH COURT] 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 - the said judgment has been followed by the Hon ble Calcutta High Court in the case of Goyal MG Gases Pvt.Ltd. v. UOI cited (supra) which is not stayed by the Hon ble Supreme Court. The Hon ble Calcutta High Court in the said case, has declared the provisions of Rule 8(3A) ibid as invalid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity in his order to the extent that, there was an intent to evade payment of duty, although there was a contravention of provisions of Rule-8(1) 8(3A). Therefore Rule 25(1)(d) is not attracted. But Rule 25(1)(a) is attracted since there was a clear cut contravention. I have further found that, the appellant had already paid Rs.28,56,126/- in the first case and Rs.5,27,496/- in the second case with interest. Even the clearances for which they were supposed to pay duty consignment wise and from PLA/cash, they have paid duty from Cenvat Credit account. Although the payment from Cenvat Credit is held illegal under Rule-8(3A) in the facts circumstances of the case, it is otherwise an inadmissible mode of payment. Therefore, I do not find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Authority is not proper and the same is not maintainable in law in view of the fact that the Ld.Commissioner did not consider the submissions of the Appellants that the payment could not be made due to financial stringency but subsequently entire amount was paid along with interest. II. For that the Ld. Commissioner failed to appreciate that penalty is not imposable in this case under Rule 25 of the Central Excise Rules, 2002. Penalty can at best be imposed under Rule 27 of the Central Excise Rules, 2002. This was consistently held by the Courts and Tribunals and the matter has now become settled by the latest judgement in the case of Commissioner of Central Excise Customs Vs. Saurashtra Cement Limited 2010 (260) ELT 71 (Guj.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. We find that the issue is no more res integra and is squarely covered by the judgement of the Hon ble Calcutta High Court in the case of M/s. Goyal MG Gases Pvt.Ltd. Vs. Union of India Others reported in 2017 (8) TMI 1515 CALCUTTA HIGH COURT, wherein it is categorically held that when Rule 8 (3A) is declared ultra vires by the different High Courts then the Revenue cannot take a different stand contrary to the said judgements. The Hon ble Court further declared Rule 8(3A) as invalid which is not stayed by the Hon ble Supreme Court. 8. We find that the Hon ble Gujarat High Court in the case of Indsur Global Ltd. v. UOI [2014 (310) E.L.T. 833 (Guj.) has declared the words without utilizing Cenvat Credit under Rule 8(3A) as ultra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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