2016 (3) TMI 398

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.... the Central Excise Tariff Act, 1985 and they manufactured all types of tippers, tip-trailers, garbage compactors, flat bed trailers. The allegation against the appellant is that there was a delay on his part in paying Central Excise duty for the month of May 2008. Out of the total of Rs. 23,81,272/- payable for May 2008, only Rs. 19,83,437/- was paid in time and remaining amount of Rs. 3,97,835/- was paid after the due date of 05.06.2008, it's the department's case that for the period 06.06.2008 upto 27.10.2008 the appellant was required to discharge the duty from current account (cash) and not through Cenvat account in view of the provisions of Rule 8(3A) of CENVAT Credit Rules, 2002. The said rules 8 (3A) provides that where ther....

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.....06.2008 up to 27.10.2008 and the appellant paid duty of Rs. 7,42,590/- in cash and Rs. 25,55,249/- through Cenvat. 4. Ld. Counsel for the appellant submitted that the order of the Commissioner (Appeals) is contrary to the law, justice, equity and is liable to be set aside. He further submitted that the provisions of Rule 8(3A) of the Central Excise Rules,2002 which require payment of duty only through account current and prohibits payment of duty through Cenvat account current and prohibits payment of duty through Cenvat account have been struck down as unconstitutional by the Hon'ble High Court of Gujarat, Madras and Punjab & Haryana by the following judgments: a) Indsur Global Ltd. - 2014 (310) ELT 833 (Guj.) b) ....

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..... Counsel for the appellant further submitted that in view of the law down by various High Courts, imposition of penalty under Rule 25 of Central Excise Act, 2002 is totally unsustainable in law. He further submitted that the Tribunal in the following decisions has laid down that for the contravention of said rule 8 no penalty can be imposed under Rule 25 and only a penalty of Rs. 5000/- can be imposed under Rule 27. He cited the following authorities on this point:- Saurashtra cement Ltd. - 2008 (225) ELT 395 Praveen Foundry P. Ltd. - 2009 (247) ELT 320 Creative Transformers P. Ltd. - 2009 (248) ELT 855 Tejpal Paper Mills Ltd. - 2010 (259) ELT 79 7. He further submitted that since now the Rule 8(3A) i....