M/S. M K Petro Products India Pvt. Ltd vs Commissioner Of Central Excise
- CitationExcise Appeal No. 1658 of 2011-Ex (SM)
Ratio decidendi
The rule this decision rests on
The demand of duty along with interest cannot be sustained where the provision of the Central Excise Rules under which it was raised, namely Rule 8(3A) of the Central Excise Rules, 2002, has been declared ultra vires by the High Court of Gujarat in Indsur Global Ltd. v. Union of India; a binding High Court declaration of invalidity of the provision removes the foundation of the demand. Notwithstanding the invalidity of Rule 8(3A), contravention of the provisions of the Rules during the relevant period attracts penalty under Rule 27 of the Central Excise Rules, 2002, and such a penalty may be imposed independently of the sustainability of the duty demand.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-In-Appeal No. 26/CE/Appl/DLH-IV/2011 dated 31/03/2011 passed by Commissioner of Central Excise (Appeals), Delhi IV, Faridabad]
For approval and signature:
Honble Mr Ashok Jindal, Member (Judicial)
1 Whether Press Reporters may be allowed to see the 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 the Order?
4 Whether Order is to be circulated to the Departmental authorities?
M/s. M K Petro Products India Pvt. Ltd. Appellants
Vs.
Commissioner of Central Excise Respondent
Delhi IV
Appearance:
Shri N K Sharma, Advocate for the Appellants
Shri M S Negi, AR for the Respondent
CORAM:
Hon'ble Shri Ashok Jindal, Member (Judicial)
Date of Hearing /decision: 3.07.2015
ORDER NO. FO/ 52121/2015-Ex(SM)
Per Ashok Jindal :
The appellant is in appeal against the impugned order wherein duty demand has been confirmed against the appellant for default in payment of duty as per Rule 8 (3A) of Central Excise Rules, 2002 by utilizing their cenvat credit account for payment of duty during default period.
2. Heard the parties.
3. Considering the fact that the provisions of Rule 8 (3A) of Central Excise Rules, 2002 has been declared ultravirus by the Honble High Court of Gujarat in the case of Indsur Global Ltd. vs. Union of India [2014(310) ELT 833 (Guj)] Therefore, I hold that demand along with interest is not sustainable against the appellant. But for contravening the provisions during the relevant time, a penalty under Rule 27 of Central Excise Rules, 2002 can be imposed on the appellant. Therefore, I impose penalty of Rs.4000/- (Rupees Four thousand only) under Rule 27 of Central Excise Rules, 2002 on the appellant.
4. With these terms, appeal is disposed of with consequential relief, if any.
(Dictated and pronounced in the open court )
( Ashok Jindal ) Member(Judicial)
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