TaxTMI 
TaxTMI 
TaxTMI 
2015 (6) TMI 222
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.... 2 lakh with interest on 19.12.2012. This delay in discharge of full duty liability for the month of April, 2012 was noticed by the audit sometime in the July, 2013. In terms of Rule 8(3A) Central Excise Rules, 2002, when there is delay in discharge of duty liability for a particular month beyond the period of one month from due date, the provisions of this sub rule become applicable and accordingly the assessee is required to pay duty consignment wise instead of paying on monthly basis and that too without availing the cenvat credit. Since, the forfeiture period had started from 06.06.2012 which continued till 18.12.2012, the Department was of the view that during this period the duty in respect of all the clearances made should have been made paid through PLA without utilizing the cenvat credit. 1.1 Since, during this period, the appellant paid the duty of Rs. 85,35,409/- through cenvat credit, the Department was of the view that they must pay this duty through PLA and once they pay this duty through PLA they can make a reverse entry in the cenvat credit account, the Department also sought imposition of penalty on them under section 11AC. However, in the meantime in August, 2013....
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....ue to clerical mistake and not a deliberate act as against the duty liability of Rs. 10,10,590/-, the appellant had paid Rs. 7,10,590/- through cenvat credit amount and an amount of Rs. One Lakh through PLA and at that time they had balance of Cenvat Credit of Rs. 3.3 Lakh, but due to clerical mistake, the balance amount of Rs. 2 Lakh was not paid, that as soon as the appellant realized this mistake, they paid the balance amount of R.s 2 Lakh on 19.12.2012 along with interest, that in view of this, this cannot be treated as a case of willful default so as to invoke the Rule 8(3) (A), that this point has been raised in the grounds of appeal but the same was not considered, that in any case, in view of judgment of Hon ble Gujarat High Court, in case of Indusar Global Ltd. vs. UOI (supra, the provision of Rule 8(3A) of Central Excise Rule 2002, requiring that during period of default beyond the period of one month from the due date, the assessee would forfeit the facility to utilize the cenvat credit and would be required to pay duty without utilizing the cenvat credit is unconstitutional, that in view of this, the stay order dated 26.11.2014 merits review, that in this regard, he rel....
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....dgment in the case of Indusar Global Ltd. vs. UOI (supra), remanded the matter to the Tribunal to the appeal on merits, he pleaded the in view of this judgment also, the stay order dated 26.11.2014 merits reconsideration. 4. Sh. MS Negi, the Ld. DR opposed the Miscellaneous application for modification, and pleaded that once the Tribunal has passed the stay order directing pre-deposit of certain amount, it becomes frunctus-officio and it cannot modify its order. He also pleaded that since, the judgment of Gujarat High Court in the case of Indusar Global Ltd. vs. UOI (supra), was not there at the time of passing the stay order, there is no mistake apparent from the record in the said order. 5. We have considered the submissions from both the sides and perused the records. The stay order directing the appellant to deposit the disputed amount of duty of Rs. 60,35,409/- through PLA had been passed on 26.11.2014, keeping in view, the judgment of Hon ble Madras High Court in the case of Unirolls vs CCE Coimbatore reported in 2013 (296) ELT-449 Mad. Wherein interpreting the provisions of Rule 8(3A) of the Central Excise Rules, 2002 Hon ble High Court had held that when the failure to di....
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....m the record of the order, (which could not have taken into consideration, such subsequent decision), would still arise, since the binding decision of the Apex Court that declared the law as it always was, would cover even the prior from the inception of such law, during which the orders contrary to such ratio of the subsequent binding decision were passed. This again will be so on the reasoning that since the binding decision of the Apex Court pr the jurisdictional High Court has declared the meaning of the law, there was no scope for any debate and, therefore, the prior order of the Tribunal, which though it could have taken such decision in to consideration, should be examined in the light of the meaning given by the binding decision, warranting rectification on the ground that there was error apparent from the record in not following the law as now declared. We are aware that a very alarming situation can arise because any subsequent binding precedent may trigger enquiries into the various decided cases where orders have been passed without having the benefit of subsequent binding decisions. Precisely to prevent mockery of finality of the decisions and adjudicatory processes, t....