TaxTMI 
TaxTMI 
2011 (10) TMI 145
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.... the order of the first respondent herein viz., Customs & Central Excise Settlement Commission dated 23.6.2011 with direction to the first respondent to hear the matter afresh and on merits and in terms of Rule 8(3A) of the Central Excise Rules, 2002 with its explanation. 3. The petitioner herein is engaged in the manufacture of automobile components falling under chapter heading "87083900" of the Central Excise Tariff Act, 1985. Admittedly, the petitioner did not pay the duty in respect of its manufacture of automobile components falling between June 2009 and January 2010. The petitioner is stated to have paid the said relevant duty for the above period as follows:- DEFAULT AMOUNT Month Duty EDU CESS SHE CESS Total Dut....
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....AT credit during the period from 5.8.2009 to 4.2.2010, without payment of duty, the same was liable to be reversed to the tune of Rs.22,17,863/- as per the provisions of sub Rule 4 of Rule 8 read with Section 11 A of the Central Excise Act, 1944, apart from that with interest at the appropriate rate till the date of payment of duty under Section 11 AB read with Rule 8(3A) of the Central Excise Rules 2002 besides levying penalty under Rule 25 of the Central Excise Rules 2002 and Rule 15 of Central Excise Rules 2004. 5. Immediately on receipt of the said notice, after paying the admitted duty, the petitioner moved the first respondent herein under Section 32E(1) of the Central Excise Act, 1944 seeking immunity from penalty, prosecution etc....
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....ntention, the first respondent viewed that there was violation of Central Excise Rules 2010 [ sic ]and the applicant's case comes under Sub Rule 3A of Rule 8 of the said Rule, which reads as under:- "If the assessee defaults in payment of duty beyond thirty days from the due date, as prescribed in sub-rule(1), then notwithstanding anything contained in said sub-rule(1) an sub-rule(4) of rule 3 of CENVAT Credit Rules, 2004, the assessee shall, pay excise duty for each consignment at the time of removal, without utilizing the CENVAT credit till the date the assessee pays the outstanding amount including interest thereon; and in the event of any failure, it shall be deemed that such goods have been cleared without payment of duty and the co....
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....rom the due date, as prescribed in sub-rule(1), then notwithstanding anything contained in said sub-rule(1) an sub-rule(4) of rule 3 of CENVAT Credit Rules, 2004, the assessee shall, pay excise duty for each consignment at the time of removal, without utilizing the CENVAT credit till the date the assessee pays the outstanding amount including interest thereon; and in the event of any failure, it shall be deemed that such goods have been cleared without payment of duty and the consequences and penalties as provided in these rules shall follow". (4) The provisions of Section 11 of the Act shall be applicable for recovery of the duty as assessed under rule 6 and the interest under sub-rule (3) in the same manner as they are applicable for r....
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....e payment made through CENVAT credit as permissible in law. 12. A reading of the first respondent's order in paragraph 7.1 shows that it considered claim of the petitioner by applying Rule 8(3A) only. The Explanation appended thereto in Rule 8(3A) under the Notification No. 8/2007-C.E.(N.T) dated 1.3.2007 with effect from the date of insertion in the rules however has not been considered at all. 13. The Revenue questioned the maintainability of the writ petition as against the order of the first respondent. In the decision of the Apex Court reported in 201 ITR 611 - JYOTENDRASINHJI v. S.I. TRIPATHI AND OTHERS , the Apex Court pointed out that where the statutory authority (in that decision the Settlement Commission) passed an order ig....