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TMI Blog2024 (12) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... peals-I), Chennai upholding Order-in-Original No. 07/2013 dated 23.01.2013 passed by the adjudicating authority confirming demands of Excise duty of Rs.42,71,978/- and Rs.42,37,030/- during the periods from April 2011 to July 2011 and August 2011 to December 2011 respectively, along with applicable interest and imposing equal penalty under Section 11AC of the Central Excise Act,1944 (ACT). 2. The above demands were consequent to the department withdrawing the facility of payment of duty through CENVAT account w.e.f. 27.03.2006 as the Appellant had defaulted in timely payment of duty on goods cleared by them. As the removals were alleged to be non-duty paid goods in contravention of Rule 8(3A) of the Central Excise Rules,2002 (Rules), Show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r submitted that there was no distinction between payment made through PLA and Cenvat Credit accounts as the issue was legally settled by the decision of the Hon'ble High Court of Bombay in the case of Lloyds Steel Industries Vs. Union of India [2005 (183) ELT 351] (iii) It was contended that the payment of duty under Rule 8 of the Rules was only a procedure and the department cannot allege non-payment as the duty was already discharged through Cenvat account and such a procedure prescribing payment through PLA only caused undue hardship on the Appellant. (iv) It was averred that availment of Cenvat credit is a right accrued under Central Excise statute and the Appellant cannot be barred from utilizing the credit availed towards payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thorised Representative for the Department, reiterated the findings in the impugned order and submitted that the Appellant was barred from payment through CENVAT account in terms of department's directions and therefore as per provisions of Section 8(3A), Cenvat credit could not be utilized for payment. Therefore, it was submitted that the demand was sustainable and prayed for dismissal of the appeal filed by the Appellant. 6. Heard both sides and carefully considered the submissions and evidences on record. 7. The main issues that arise for consideration in these appeals are:- i. Whether the demand as confirmed and upheld in the impugned order dated 23.04.2015 for violation of Rule 8(3A) against the Appellant is sustainable in law or n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he departments case that the Appellant defaulted in payment of duty in as much as the duty payment was not made through PLA account and hence was not eligible to utilize Cenvat Credit for payment of duty in terms of the said rule. 9. The issue as to whether the Assessee can utilise the CENVAT credit toward payment of duty when in default is no more res integra and many judicial authorities have held that the provision of Rule 8(3A) of Central Excise Rules, 2002 as ultravires to the Main Act. The Hon'ble Gujarat High Court in the case of M/s. Indsur Global Ltd. Vs. UOI [2014 8 (310) ELT 833 (Guj.)] struck down the condition in Rule 8(3A) for payment of duty "without utilizing the CENVAT credit" as unconstitutional and invalid. This judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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