2016 (3) TMI 302

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....AT Credit. The appellant committed default in the payment of duty for the month of February 2008 and paid outstanding duty on 30.05.2008. As per Rule 8(3A) they were required to pay duty consignment-wise without utilising Cenvat Credit for the month of April and May 2008 but the appellant failed to pay the duty consignment-wise and utilised the Cenvat Credit for payment of duty during the month of April 2008. Similarly for the duty for the month of April, May, June, July and August 2008 duty was not paid on due dates and also not paid within one month from the due date. The duty for these months were paid on 11.07.2008, 22.09.2008, 03.10.2008 and 04.10.2008 respectively. Further for the month of June to September, the appellant paid duty th....

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....(320) ELT 764 c) Malladi Drugs & Pharmaceuticals P. Ltd. 2015 (323) ELT 489 (Mad) d) A.R. Metallurgicals P. Ltd. 2015 (322) ELT 49 (Mad) e) Sandley Inds. 2015 (326) ELT 256 (P&H) 4. He further submitted that the said rule 3A under which duty is sought to be demanded itself has been struck down as unconstitutional by various High Courts as cited supra. In this situation, the show-cause notice, Order-in-Original and Order-in-Appeal which are based upon rule 8(3A) cannot survive and are liable to be set aside as held by the Hon'ble Gujarat High Court in para 4 of the judgment in Shreeji Surface Coatings P. Ltd. (supra). In para 4, the Hon'ble High Court of Gujarat has observed as under:- "4. When ....

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....ous High Courts, no penalty at all can be imposed. Ld. Counsel for the appellant submitted that by relying on the judgment of the Gujarat High Court, this Tribunal in the case of Vaibhav Forge vide Order no. A/1461/15/SMB dated 15.05.2015 has allowed the appeal of the appellant by setting aside the order of appeal passed by the Commissioner. 7. On the other hand, ld. AR reiterates the findings of the lower authorities. 8. It is a fact that the show-cause notice, Order-in-Original and Order-in-Appeal are based on the violation of Rule 8(3A) of the Central Excise Rules, 2002 which require the payment of duty only through account current in case of violation of payment of duty in time as prescribed in Rule 8. As submitted by the ld. Coun....