Cenvat credit availability in cases of monthly payment default stayed for fresh adjudication pending higher court determination.

Tribunal refrained from deciding whether cenvat credit can be utilised where there is default in monthly payment under the challenged rule because a higher court has declared the rule ultra vires and an appeal is pending before the Supreme Court; accordingly the Tribunal set aside the impugned orders and remanded the matter to the adjudicating authority for fresh adjudication after the Supreme Court pronounces on the issue, leaving all other issues open.

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Issues: Whether the appellant can utilize cenvat credit when there is default in monthly payment in terms of Rule 8(3A).

Analysis: The Tribunal noted that the substantive question regarding Rule 8(3A) has been considered by the Hon'ble Gujarat High Court in Indsur Global Ltd which held Rule 8(3A) to be ultra vires; an appeal by the Revenue against that decision is admitted and pending before the Hon'ble Supreme Court. In view of the pending Supreme Court decision on the identical question, the Tribunal found it appropriate to refrain from deciding the substantive issue and to remit the matter for fresh consideration by the adjudicating authority after the Supreme Court pronounces on Indsur Global Ltd. The impugned orders were therefore set aside and the matter remanded for passing fresh orders in light of the Supreme Court outcome. All other issues were left open.

Conclusion: The impugned orders are set aside and the appeals are allowed by remanding the matter to the adjudicating authority for fresh adjudication after the decision of the Hon'ble Supreme Court in Indsur Global Ltd; other issues remain open.

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