TMI Blog2023 (4) TMI 1192X X X X Extracts X X X X X X X X Extracts X X X X ..... e Hon ble Supreme Court. The 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 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 and further has held that the Revenue cannot take a different stand and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te have already been paid. The Appellant undertakes the processing to convert the Base Oil into Transformer Oil and after packaging, the said finished products are supplied entirely to M/s. IOC as per the agreement. Since the duty paid raw materials and packaging materials supplied by M/s. IOC have been used in or in relation to the manufacture of the final product, the Appellant have been availing the Cenvat Credit of CE duty paid on the said inputs. At the time of clearance of the finished product, the Appellant have been availing the Cenvat Credit of CE duty paid on the said inputs. At the time of clearance of the finished product, the Appellant have been partly utilizing the Cenvat Credit lawfully earned and partly by debit from the acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of interest, the Appellant have been made liable for payment of huge amount of duty of Rs. 92,09,289.00 and penalty of equal amount by very strict and narrow interpretation of Sub-Rule (3A) of Rule 8 of the said Rules. The Appellant submits that the basic amount of duty has duly been paid in full by 30/01/2009 along with interest. It is therefore submitted that even if any default occurred, it continued only upto 30/01/2009. It is, therefore, absolutely illegal and improper to allege that the default continued upto 14/12/2009 only on the ground that a portion of interest liability has been paid on 14/12/2009 arising out of simple calculation mistake. The fact remains that the Appellant paid the outstanding amount of duty amounting to Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s made to pay duty for the clearances effected during 12/01/2009 to 31/01/2009 (it may be mentioned that there was no clearance during the period from 15/12/2008 to 11/01/2009) for each consignment by debiting from the PLA, the Cenvat Credit already utilized by the Appellant for the said clearances will revive and the Appellant will become entitled to utilize such revived credit for payment of duty for subsequent clearances. It is therefore strictly speaking not a case of clearance of excisable goods without payment of duty but only difference in the mode/manner of payment of duty. Hence, if the Appellant is compelled to pay duty for the clearances effected during 12/01/2009 to 29/01/2009 by paying from PLA/by cash, the Cenvat Credit alread ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able on the ground of time bar. The Appellant submitted the following case laws in support of their contention:- (i) CCE Vs. Vapi Paper Mills Ltd. [2009 (234) ELT 538] (ii) Ventex Syntex Pvt.Ltd. Vs. CCE [2009 (233) ELT 230] (iii) CCE Vs. Giriraj Industries [2008 (223) ELT 640] 8. Ld. Authorized Representative appearing on behalf of the Department reiterated the findings in the impugned order. 9. Heard the Ld. Authorized Representative for the Department and perused the Appeal records. 10. 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 H ..... X X X X Extracts X X X X X X X X Extracts X X X X
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