Commissioner Of Central Excise vs Rajesh Malleables Ltd

[Arising out of OIA-218-219/2008-AHD-I-CE/ID/COMMR-A- dtd 24.12.2008 Passed by Commissioner of Central Excise-AHMEDABAD

Commissioner of Central Excise- AHMEDABAD Appellant(s)

Vs.

Rajesh Malleables Ltd Respondent (s)

Represented by:

Appellant(s) : Shri Alok Srivastava (Authorised Representative) Respondent (s) : None.

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?

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)

Date of Hearing / Decision : 01/01/2015

ORDER No. A/10144 / 2015 dtd 1/1/2015

Per : Mr. P.K. Das;

None appears on behalf of the respondents. There is no application for adjournment. On perusal of the record, I find that the hearing notice was returned with the postal remark left.

2. After hearing Shri Alok Srivastava, Learned Authorised Representative for Revenue, and perusal of the records, I find that the respondent failed to discharge duty in due time under Rule 8 of the Central Excise Rules 2002. It is seen that the respondent discharged the duty during defaulted period partly through cenvat account. The Adjudicating Authority demanded the duty which was paid through cenvat account for violation of Rule 8 (3A) of the Central Excise Rules, 2002. The Commissioner (Appeals) allowed appeal filed by the respondents. It is seen that the issue is covered in favour of the respondents as per the decision of the Honble High Court, Gujarat in the case of Indsur Global Ltd., vs Union of India  2104(310)ELT.833 (Guj). It has been held as under :

 By no stretch of imagination, the restriction imposed under sub-rule (3A) of Rule 8 to the extend it required a defaulter irrespective of its extent, nature and reason for the default to pay the excise duty without availing Cenvat Credit to his account can be stated to be reasonable restriction. It leads to a situation so harsh and a position so unenviable that it would be virtually impossible for an assessee who is trapped in the whirlpool to get out if his financial difficulties. This is quite apart from being wholly reasonable, being irrational and arbitrary and therefore, violative of article 14 of the constitution. It prevents him from availing credit of duty already paid by him. It also is a serious affront to his right to carry on his trade of business guaranteed under Article 19(1)(g) of the constitution . On both the counts, therefore, that portion of sub-rule (3A) of rule must fail.

3. In view of the above discussion, I do not find any merit in the appeal filed by the Revenue. Accordingly, appeal filed by the Revenue is rejected.

(Dictated and pronounced in the Court)

(P.K. Das) Member (Judicial) swami ??

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