Commissioners Of Central Excise vs M/S Hindustan Gas Industries
- CitationAppeal No. : E/945,944/2009
Ratio decidendi
The rule this decision rests on
Where a clearance is made by utilising Cenvat credit under Rule 8(3A) of the Central Excise Rules, 2002 during a defaulted period, the condition in sub-rule (3A) that the assessee must first pay the outstanding amount with interest before the Cenvat credit may be utilised is unconstitutional and the portion of sub-rule (3A) requiring payment without utilising Cenvat credit is invalid, as held by the High Court of Gujarat in Indsur Global Ltd v. Union of India, and the Tribunal is bound to follow that decision.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[ Arising out of OIA-COMMR-A-/26&27/VDR-II/2009 dtd 26/02/2009 Passed by Commissioners of Central Excise, Customs and Service Tax-VADODARA-II ]
Commissioners of Central Excise, Customs and Service Tax-VADODARA-II - Appellant (s)
Vs.
M/s Hindustan Gas Industries - Respondent (s)
Represented by:
Appellant (s) : Shri Alok Srivastava, Authorised Representative Respondent (s) : Shri H D Dave, Advocate
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/11167-11168 / 2015 dtd 17/7/2015
Per : Mr. P.K.Das;
Revenue filed these appeals against the order of the Commissioner (Appeals), where the matter was remanded to the Adjudicating Authority. The respondent also filed cross objection against the impugned order.
2. After hearing both the sides and on perusal of the records, we find that the issue involved in these cases are that the respondent cleared the goods during the defaulted period by utilizing the cenvat credit under Rule 8 (3A) of the Central Excise Rule 2002. The Honble Gujarat High Court in the case of Indsur Global Ltd vs UOI [2014(310)ELT.833(Guj.)] held as under:
36.In the result, the condition contained in sub-rule (3A) of Rule 8 for? payment of duty without utilizing the Cenvat credit till an assessee pays the outstanding amount including interest is declared unconstitutional. Therefore, the portion without utilizing the Cenvat credit of sub-rule (3A) of Rule 8 of the Central Excise Rules, 2002, shall be rendered invalid.
3. In view of the above discussions, the appeals filed by the Revenue are rejected. The Cross Objection filed by the respondent are allowed. Both the orders of the lower authorities are set aside.
4. The Early Hearing applications are disposed of.
(Dictated and pronounced in the Court)
(P.M. Saleem) (P.K. Das) Member (Technical) Member (Judicial)
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