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Commissioner Of Central Excise & S.T., ... vs M/S. Rajesh Malleables Limited

Customs Excise and Service Tax Appellate Tribunal8 January 2015

Ratio decidendi

The rule this decision rests on

The Tribunal rejected the Revenue's appeal against the Commissioner (Appeals)'s order setting aside the demand, because the Gujarat High Court had held Rule 8(3A) of the Central Excise Rules, 2002 (requiring payment of duty without utilising cenvat credit where the duty is paid late) to be unconstitutional, so the demand founded on that Rule could not stand.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL,West Zonal Bench, AhmedabadAppeal No. : E/1589/2009 [E/Cross/80/2010]

Arising out of OIA-222/2009-AHD-I-CE/CMC/COMMR-A-/AHD/S/13-A-I-/09 dated 31.08.2009 Passed by Commissioner (Appeals) Central Excise & Customs, Ahmedabad

Commissioner of Central Excise & S.T., Ahmedabad : Appellant (s)

vs.

M/s. Rajesh Malleables Limited : Respondent (s)

Represented by :

For Assessee : None

For Revenue : Shri Alok Srivastava, A.R.

For approval and signature :

Mr. P.K. Das, Hon'ble Member (Judicial)

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?

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)

Date of Hearing / Decision : 08.01.2015

ORDER No. A/10035/2015 Dated 08.01.2015

Per : Mr. P.K. Das;

None appears on behalf of the respondent. There is no application for adjournment.

2. After hearing the learned Authorised Representative and on perusal of the records, I find that the Respondent had defaulted for discharging monthly payment of duty for the month of June 2006 and not paid within the stipulated period and was paid in August 2006 to February 2007 along with interest. A show cause notice was issued for disallowing the duty paid from the cenvat account in violation of Rule 8(3A) of the Central Excise Rules, 2002 read with Section 11A of the Central Excise Act, 1944 along with interest and impose penalty. Adjudicating authority confirmed the demand and imposed penalty. Commissioner (Appeals) set-aside the adjudication order.

3. It is seen that the Honble Gujarat High Court in the case of Indsur Global Limited vs. UOI  20140TIOL-2115-HC-AHM-CX held that Rule 8(3A) of the Central Excise Rules, 2002 for payment of duty without utilising cenvat credit, is unconstitutional.

4. In view of the above discussion, I do not find any reason to interfere to the order of Commissioner (Appeals). Accordingly, appeal filed by the Revenue is rejected. Cross Objection is also disposed of.

(Dictated and pronounced in the Court)

(P.K. Das) Member (Judicial) ..KL

2

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