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TMI Blog2023 (8) TMI 657X X X X Extracts X X X X X X X X Extracts X X X X ..... ng under Chapter 94 of Central Excise Tariff Act, 1985 and are availing the facility of CENVAT credit under the Cenvat Credit Rules 2004. 3. During the scrutiny of ER-I returns filed by the respondent for the period of February 2011 to November 2011 it was found that the respondent did not file ER-1 return by stipulated date; cleared goods without payment of duty from PLA and was not eligible to utilize Cenvat Credit for discharging its excise duty liability because the respondent had not paid duty by the stipulated dates and default in payment of duty continued beyond 30 days. 4. Accordingly, a Show Cause Notice was issued to the respondent for recovery of short paid Central Excise duty amounting to 1,00,98,054/- under section 11A(1) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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". 9. Ld. DR further submitted that the adjudicating authority has wrongly relying upon the decision of Gujarat High Court in the case of I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourts as cited (supra). In this situation, the show cause notice does not survive. 12. After considering the submissions of both the parties and perusal of the material on record and the various decisions relied upon by the Respondent, we find that this issue is no more res-integra as the various Hon'ble High Courts have held that the provisions of Sub-Rule 3A of Rule 8 of the Central Excise Rules, 2002 are unconstitutional. In this regard, we may rely upon the Jurisdictional High Court of Punjab and Haryana in the case of Sandley Industries vs. UOI reported in 2015 (326) ELT 256 (P&H) wherein it has been held as under:- "14. We express our concurrence with the judgments of the Gujarat High Court in Indsur Global Limited & Precision Fast ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Gujarat, Madras and Punjab & Haryana in various judgments cited above, no duty and penalty can be imposed as observed in the case of Shreeji Surface Coatings PLtd. (supra) by the Hon'ble High Court of Guajarati. Since the rule under which the entire proceedings have been initiated have been declared unconstitutional, no liability arises under the said Rules". 14. Similarly, the Hon'ble Gujarat High Court in the case of Indsur Global Ltd. vs. UOI -2014 (310) ELT 833 (Guj) has held in Paras 29, 32, 33 and 36 as under:- "29. This brings us to the last limb of the petitioner's contention, namely, that the condition attached by sub-rule (3A) of Rule 8 is unreasonable and therefore, violative of Article 14 of the Constitution and amo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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