Arising Out Of ... vs Commissioners Of Central Excise
- CitationAppeal No. : E/13107/2013
Ratio decidendi
The rule this decision rests on
The Sub-Rule 3A of Rule 8 of the Central Excise Rules, 2002, insofar as it required an assessee in default to pay duty without utilising Cenvat credit until the outstanding amount together with interest was paid, is unconstitutional, as declared by the Gujarat High Court in Indsur Global Ltd v. Union of India; a clearance by an assessee who, in the defaulted period, utilised Cenvat credit to discharge duty therefore cannot be faulted on that ground, and an order resting on the contrary requirement is set aside.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[ Arising out of OIO-DMN-EXCUS-000-COM-002-13-14 dtd 19.6.2013 Passed by Commissioners of Central Excise, Customs and Service Tax-DAMAN ] M/s Yashraj Containers Ltd - Appellant (s)
Vs
Commissioners of Central Excise, Customs and Service Tax-DAMAN - Respondent (s)
Represented by:
Appellant (s) : Shri Rahul Gajera, Advocate Respondent (s) : Shri Alok Srivastava, Authorised Representative
For approval and signature :
Mr. P.K. Das, Hon'ble Member (Judicial) Mr. P.M. Saleem, Honble Member (Technical)
1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No 2 Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
No 3 Whether their Lordships wish to see the fair copy of the Order?
Seen 4 Whether Order is to be circulated to the Departmental authorities?
Yes
CORAM :
Mr. P.K. Das, Hon'ble Member (Judicial) Mr. P.M. Saleem, Honble Member (Technical)
Date of Hearing / Decision : 17/7/2015
ORDER No. A/11103 / 2015 dtd 17/7/2015
Per : Mr. P.K.Das;
The applicant filed this application for Early Hearing of the appeal. After hearing both the sides, and on perusal of records, we find that the issue involved is whether the applicant is eligible to clear goods by utilizing cenvat credit during the defaulted period under the provisions of Sub Rule 3A of Rule 8 of the Central Excise Rules 2002. The issue is no more res integra in view of the decision of Honble Gujarat High Court in the case of Indsur Global Ltd vs UOI [2014(310)ELT.833(Guj.)]. It has been held that the portion of Sub Rule 3A of Rule 8 of the Central Excise Rules 2002 for payment of duty without utilizing the Cenvat credit till an assessee pays the outstanding amount including interest is declared unconstitutional.
2. Accordingly, the impugned order is set aside. The appeal filed by the appellant is allowed. The Early Hearing Application is disposed of.
(Dictated and pronounced in the Court)
(P.M. Saleem) (P.K. Das) Member (Technical) Member (Judicial)
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