TMI Blog2023 (6) TMI 189X X X X Extracts X X X X X X X X Extracts X X X X ..... Once Rule 8(3A) of the said Rules has been declared as unconstitutional to the extent it prohibited utilizing Cenvat credit, the discharge of payment of duty on the final products, the said provision to the above extent ceases to apply. The Act and the said Rules being all India in its application, the decision rendering a part of it as unconstitutional would equally apply within the State of Maharashtra, in the absence of any contrary view or the appellant showing that the view of the Gujarat High Court in Indsur Global Ltd. is ex-facie unsustainable. In view of the above decisions of Hon ble High Court there are no merits in the impugned orders and the same is set aside - appeal allowed. - Excise Appeal No. 85719, 85720 of 2013 Excise Appeal No. 85739,85752 of 2013 - - - Dated:- 27-4-2023 - HON BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) And HON BLE DR. SUVENDU KUMAR PATI, MEMBER (JUDICIAL) Shri Mihir Mehta, a/w Shree Mohit Rawal, Ms.Mrinal Sharma Advocate for the Appellant Shri Sunil Kumar Katiyar, Authorised Representative for the Respondent ORDER PER : BENCH The details of all appeals are is in table below. Appeal N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the period from March, 2009 to November 2009 in respect of Plot No R-865[total Rs 1,25,12,073/-] should be recovered through PLA from M/s. Hatkesh Chemicals Pharmaceuticals Pvt. Ltd under Rule 14 of Cenvat Credit Rules, 2004 read with proviso to Section 11A(1) of Central Excise Act, 1944. (iv) I order payment of Interest at the appropriate rate, on the above said wrongly utilized Cenvat Credit and to be recovered from M/s. Hatkesh Chemicals Pharmaceuticals Pvt. Ltd under Rule 14 of Cenvat Credit Rules, 2004 read with Section 11AB of the Central Excise Act, 1944. (v) I impose Penalty of Rs. 70,92,658/- (for Differential Central Excise duty not paid) on M/s. Hatkesh Chemicals Pharmaceuticals Pvt. Ltd, Plot No R- 83B, Plot No R-865 as per the provisions of Rule 25 of the Central Excise Rules, 2002. (vi) I impose Penalty of Rs 1,25,12,073/- (for wrong utilization of inadmissible Cenvat Credit for payment of duty during the defaulting period) on M/s. Hatkesh Chemicals Pharmaceuticals Pvt. Ltd, Plot No R-83B, Plot No R- 865 as per the provisions of Rule 15 (2) of the Cenvat Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944. (v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... differential duty of Rs.9,77,536/- which is not yet paid by them. ii) I order Payment of Interest at appropriate rates on Central Excise duties as determined and demanded at Sr No (i) above from M/s. Shree Mantralayam Chemical Industries Pvt. Ltd under the provisions of erstwhile Section 11AB [now Section 11AA)] of the Central Excise Act,1944 on the evaded duty at (i) above and the amount of Rs.39,995/- [Plot No W-359 = Rs 20,134/ + Plot No R- 420 = Rs 19,861/-] already deposited is appropriated towards Interest on the Central Excise duty on the goods removed without payment duty. iii) I order that the Cenvat Credit wrongly utilized by M/s. SMCIPL amounting to Rs. 25,39,609/-, during the period from September 2007 to January 2009 in respect of Plot No R-83A and Rs. 6,84,260/- during the period from September, 2009 to November 2009 in respect of Plot No W-359 and Rs. 7,59,971/- during the period from April, 2009 to October 2009 in respect of Plot No R-420 [total Rs 39,83,840/-] should not be recovered through PLA from M/s. Shree Mantralayam Chemical Industries Pvt. Ltd under Rule 14 of Cenvat Credit Rules, 2004 read with proviso to Section 11A (1) of Central Excise Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilizing CENVAT Credit at the time of clearance of the goods in the prescribed manner. 5 We find that the issue is no longer Res Integra and Hon ble Gujrat High Court as in the case of Indsur Globe quashed the said rule holding as follows: 18. In exercise of powers conferred under Section 37 of the Central Excise Act, 1944, the Central Government has framed the Central Excise Rules, 2002. Rule 4 of the said Rules pertains to duty payable on removal. Sub-rule (1) thereof provides that every person who produces or manufactures any excisable goods, or who stores such goods in a warehouse, shall pay the duty leviable on such goods in the manner provided in Rule 8 or under any other law, and no excisable goods, on which any duty is payable, shall be removed without payment of duty from any place where they are produced or manufactured or from a warehouse unless otherwise provided. Rule 5 of the Central Excise Rules, 2002, pertains to date of determination of duty and tariff valuation. Sub-rule (1) thereof provides the rate of duty or tariff value applicable to any excisable goods other than khandsari molasses shall be the rate or value in force on the date when such goods are rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 time of removal without utilizing the Cenvat credit till he pays the outstanding amount including interest. In the event of failure, it would be deemed that such goods have been cleared without payment of duty and the consequences and penalties as provided in the rules would follow. 20. We may record that sub-rule (3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with interest at the rate specified by the Central Government under a notification. The period of computation of interest would be the first day after the due date till date of actual payment of the outstanding amount. 23. As noted, the Cenvat Credit Rules, 2004 permit an assessee liable to pay excise duty to avail Cenvat credit for such purpose on various duties paid on the inputs which may either be raw material or capital goods in the manner provided in the said rules. In this context, sub-rule (3A) of Rule 8 makes two fold departure in case of an assessee who has been unable to pay the duty by the due date and such default continues for a further period of 30 days from the due date. If an assessee who was required to pay the entire months of excise duty by the 5th or 6th of the following month, does not do so for a further period of 30 days, the unpleasant consequences envisaged in sub-rule (3A) would follow. Such consequences would be that he would no longer enjoy the facility of payment of excise duty on monthly basis and he would have to clear each consignment on actual payment of duty and secondly that he would not be entitled to avail of Cenvat credit for such purpos ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
