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TMI Blog2024 (8) TMI 1492X X X X Extracts X X X X X X X X Extracts X X X X ..... rtment. They are availing Cenvat Credit on inputs/ input services and utilize the same for payment of excise duty for their final products. 2. On Scrutiny of ER 1 Return filed by the assessee for the month of June 2013, it was found that the appellant had to pay Central Excise duty of Rs on due date i.e. 5.7.2013. However the appellant paid an amount of Rs on 26.8.2013 and balance amount of Rs by utilizing the Cenvat account. For the subsequent period i.e. from July 2013 to December 2013, the appellant had not paid Central Excise duty on due dates and had paid Central Excise duty through both PLA and Cenvat account subsequently. Interest was also paid for payment made in cash. 3. In terms of provisions of Rule 8(3) of the Central Excise R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the original authority confirmed the demand, interest, and imposed penalties. Aggrieved by such order, the appellant is now before the Tribunal. 6. The Ld. Counsel Shri Derrick Sam appeared and argued for the appellant. It is submitted that the delay in payment of duty beyond 30 days is only with respect of two months i.e. June 2013 and August 2013. However, the Adjudicating Authority has demanded duty paid through Cenvat credit from August 2013 to December 2013 to a tune of Rs. 52,79,105/--. The adjudicating authority had dropped the balance of demand raised in the Show Cause Notice. 7. The Ld. Counsel refferred to Rule 8(3A) of Central Excise Rules, 2002 which reads as under. "8(3A). If the assessee defaults in payment of duty beyond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry same issue and following the decision of the Hon'ble High Court of Gujarat in the case of Indsur Global Ltd., and the decision of the Hon'ble High Court of Madras in the case of Malladi Drugs & Pharmaceuticals Ltd., Sandley Industries Ltd Vs UOI -- 2015(326) ELT 256(P&H) held Rule 8 (3A) of the Central Excise Rule 2002 to be unconstitutional. 11. The Tribunal in the case of Andhra Cylinders (P) Ltd versus case Central Excise Hyderabad(2023) 12 Centax 93 (Tri.--Hyd) [3.1.2020] set aside the demand / penalty confirmed alleging violation of Rule 8(3A) of Central Excise Rule 2002. 12. The Ld. Counsel prayed that the appeal may be allowed. 13. The Ld. AR Shri M. Selvakumar appeared and argued for the department. The findings in the impugne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court of Bombay in the case of Nashik Forge (P.) Ltd (Supra) has been relied by the Tribunal in the case of M/s. Andhra Cylinders (P.) Ltd the relevant para reads as under: 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 here was no stay in respect of the other judgments. Learned departmental representative relies on the judgment of Larger Bench of Hon'ble Supreme Court in the case of West Coast Paper Mills(supra) to assert that once an app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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