M/S Kemrock Ind. & Exports Ltd vs Cce Vadodara-Ii

Appeal No.E/11940/2014-DB; Application No.E/Stay/13117/2014 [Arising out of OIO No.VAD-EXCUS-002-COM-091-13-14, dt.12.03.2014, passed by Commissioner of Central Excise & Customs, Vadodara]

M/s Kemrock Ind. & Exports Ltd. Appellant

Vs

CCE Vadodara-II Respondent

Represented by:

For Appellant: Shri S.R. Dixit, Adv.

For Respondent : Shri K. Sivakumar, Addl.Commissioner (AR)

For approval and signature:

Mr. P.K. Das, Honble Member (Judicial) Mr. R.K. Singh, Honble Member (Technical)

1. Whether Press Reporters may be allowed to see the No Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether their Lordships wish to see the fair copy of Seen the order?

4. Whether order is to be circulated to the Departmental Yes authorities?

CORAM:

MR. P.K. DAS, HONBLE MEMBER (JUDICIAL) MR. R.K. SINGH, HONBLE MEMBER (TECHNICAL)

Date of Hearing/Decision:16.01.2015

Order No. A/10078 / 2015, dt.16.01.2015

Per: P.K. Das

1. After hearing both the sides, we find that the appeal may be decided at the stage of stay petition hearing. Accordingly, after disposing the stay petition, we take up the appeal for hearing.

2. After hearing both the sides and on perusal of the records, we find that the appellants are engaged in the manufacture of excisable goods, classifiable under Chapter 39 of the Schedule to the Central Excise Tariff Act, 1985.

3. The appellants are discharging duty on monthly basis under Rule 8 of Central Excise Rules, 2002. There was a delay in discharging of duty on monthly basis. The appellant paid duty partly from CENVAT account during the defaulted period. By the impugned order, the Adjudicating Authority disallowed the utilization of the amount from CENVAT account during the period from 05.07.2010 to 29.09.2010 in terms of provisions of Rule 8(3A) of Central Excise Rules, 2002 and confirmed the demand of duty along with interest and imposed penalty for not paying the amount by cash from PLA. We find that the Honble Gujarat High Court in the case of Indsur Global Ltd Vs Union of India  2014 (310) ELT 833 (Guj.) held that the portion without utilizing the CENVAT Credit of sub-rule (3A) of Rule 8 of Central Excise Rules, 2002, shall be rendered invalid. The relevant portion of the said decision is reproduced below:-

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 decision of Honble Gujarat High Court, we find that the impugned order is not sustainable. The impugned order is set aside and the appeal is allowed with consequential relief.

4. At this stage, the ld.Authorised Representative for the Revenue submits that they have not paid duty fore each consignment at the time of removal of goods and therefore, they are liable to pay interest. In our view, the appellant shall pay excise duty for each consignment at the time of removal of goods till the date the assessee pays outstanding amount including interest. Revenue is at liberty to demand the interest, if any, in accordance with law.

(Dictated & Pronounced in Court)

(R.K. Singh) (P.K. Das) Member (Technical) Member (Judicial)

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