2015 (12) TMI 798

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....ility was Rs. 34,61,347/- which they were required to discharge by 5th day of June, 2012. However, by the due date, the appellant paid only an amount of Rs. 30,42,147/- through cenvat credit and the balance amount of duty of Rs. 4,19,200/- was not paid. According to the appellant, they realized their mistake in Feb. 2013 and during that month, they paid the balance amount of Rs. 4,19,200/- pertaining to May, 2012 along with interest. However, since the forfeiture period, in terms of Rule 8(3A) of the Central Excise Rules, 2002 had started w.e.f. 6.7.2012, during the period from 6.7.2012 to 7.3.2013, the date on which the entire duty along with interest was paid, the appellant were required to pay duty on the goods cleared by them consignmen....

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....berate, that in any case in view of the judgement of the Honble Gujarat High Court in the case of Indsur Global Ltd. reported in 2014 (310) ELT 833 (Gujarat), the provisions of Rule 8 (3A) of the Central Excise Rules, 2000 requiring the assessee to make payment of duty during forfeiture period, without utilizing the cenvat credit has been held to be to be un-constitutional, that in view of this, the impugned order would not be sustainable, that the appellant have strong prima facie case in their favour and hence, the requirement of pre-deposit of duty demand, interest and penalty may be waived for hearing of their appeals and recovery thereof may be stayed. 4. Shri Ranjan Khanna, ld. Departmental Representative opposed the stay applicat....

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....ay duty without utilizing the cenvat credit. According to the provisions of Rule 8(3A) of the Central Excise Rules, 2002, when the assessee fails to discharge duty liability in respect of a month by the due date and the failure continues beyond the period of one month from due date, the assessee forfeits the facility to pay duty on monthly basis and is required to pay duty consignment wise without utilizing the cenvat credit. However, we find that this provision of Rule 8(3A) has been held to be un-constitutional by the Gujarat High Court in case of Indsur Global Ltd.(supra). In the judgements of the Honble Madras High Court in cases of Saehan Stamping Pvt.Ltd.(supra) and Unirols Airtex (supra) and of Honble Karnataka High Court in the ca....