TMI Blog2024 (2) TMI 955X X X X Extracts X X X X X X X X Extracts X X X X ..... is no more res integra and has been decided by this tribunal in the case of PRINCIPAL COMMISSIONER OF C. EX., DELHI-I VERSUS SPACE TELELINK LTD. [ 2017 (3) TMI 1599 - DELHI HIGH COURT] , M/S. SUPERMAX PERSONAL CARE PVT. LTD. VERSUS COMMISSIONER OF CE ST, LTU, MUMBAI [ 2022 (7) TMI 920 - CESTAT MUMBAI] and ANDHRA CYLINDERS PVT LTD, NALIN KHARA, MANAGING DIRECTOR VERSUS COMMISSIONER OF CUSTOMS, CENTRAL EXCISE SERVICE TAX, HYDERABAD I [ 2020 (1) TMI 189 - CESTAT HYDERABAD] where it was held that Undisputedly appellants have paid the defaulted duty for the month of January 2013, by making a debit entry in the CENVAT Account on 26.03.2013. Even if this debit was to be considered as not a valid payment of duty, then also the Appellant co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntravened the provisions of Rule 8(3A) of the Central Excise Rules, 2002 and therefore rendered themselves liable to penalty under Rule 25 of the said Rules read with Section 11AC of the Central Excise Act, 1944. 2. The Appellant have been issued two separate Show Cause Notices dated 11.09.2014 and 11.12.2015 involving common question of law, but for different time periods and therefore subjected to penal action vide separate Orders-in-Original which were subsequently upheld by the Commissioner holding appeal charge. As noticed from the said Show Cause Notices itself and as stated by the Ld.Advocate, the Appellant had made good the shortfall in duty with interest in each of the two cases. The Department had noticed upon scrutiny of the E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deposit of Rs.2,72,046.00 through e-payment vide Challan no. 00102 dt. 14.01.2013 (debited vide PLA Entry Sl.No.18 dated 14.01.2013) along with interest amounting to Rs.7,884.00 out of which Rs.5,366.00 deposited vide PLA debited in Sl.No.32 dated 04.04.2013 for Rs.5,366/- and Sl.No.33 dated 04.04.2013 for Rs.2,518.00 (Copy Enclosed in the SCN). So the noticee was liable for penalty under Rule 25 of the Central Excise Rules, 2002 for contraventions of the provisions under Rule 8(3A) of the Central Excise Rules, 2002. 4. The question involved in the matter, is no more res integra and has been decided by this tribunal in the case of PRINCIPAL COMMR. OF C.EX. DELHI-I V/S. SPACE TELELINK LTD. reported under 2017 (355) ELT 189 (Del.), SUPE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal against judgment of the Hon'ble High Court of Punjab Haryana in the case of Sandley Industries Ltd (supra) was dismissed on monetary limits by the Hon'ble Apex Court. Further, we find from the website of the Hon'ble Supreme Court of India that a batch of several appeals have been tagged with the appeal of Union of India in the case of Indsur Global Ltd (supra). 14. In view of the above, we find that at least four different High Courts have struck down the constitutional validity of Rule 8(3A) of Central Excise Rules, 2002 and appeals against such judgments have been admitted by the Hon'ble Supreme Court and have yet to be decided. There was a stay in one case i.e., Indsur Global Ltd (supra) only but there was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en 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. This order of the Hon ble High Court has not been stayed by the Hon ble Supreme Court. 6. I 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 vires which means that the assessee can discharge duty by utilizing Cenvat Credit. 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 a valid decision today and we a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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