2016 (5) TMI 838

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.... Five Thousand only). Briefly the facts of the present case are that the appellants are engaged in the manufacture of Hydraulic Cylinders and parts thereof falling under chapter sub heading 84792090 of Central Excise Tariff and are availing the facility of cenvat credit. The appellant was issued a show-cause notice dated 13.04.2010 demanding the excise duty amounting to Rs. 1,70,368/- (Rupees One Lakh Seventy Thousand Three Hundred and Sixty Eight only) on the goods cleared during the month of May 2009 by utilizing the cenvat credit whereas they were required to pay duty only in account current or cash on each consignment from 6th May 2009 onwards and also demanded interest under Section 11AB and proposed penalty under Rule 25 of Central Ex....

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....d Sixty Eight only) in the month of May 2009 i.e. during the default period and made the payment of default amount along with interest on 30.05.2009. He further submitted that constitutionality of Rule 8(3A) was challenged before the Hon'ble Gujarat High Court in the case of Indsur Global Ltd. Vs. Union of India reported in [2014 (310) E.L.T. 833 (Guj.)] wherein the Honble High Court of Gujarat in para 36 of the judgment has held as under: "36. In the result, the condition contained in sub-rule (3A) of Rule 8 for payment of duty without utilizing the cenvat credit till an assessee pays the outstanding amount including interest is declared unconstitutional. Therefore, the portion "without utilizing the cenvat credit" of sub-rule (3A) of R....

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.... same view was taken by the CESTAT in the case of Solar Chemferts Pvt. Ltd. Vs. CCE, Thane-l [2012 (276) E.L.T. 273 (Tri.-Mumbai)] where the ratio of High Court judgment in Saurashtra Cement was relied upon. 3. I have heard the learned counsel for the parties and perused the records and also gone through the judgment cited by the learned counsel for the appellant wherein the constitutionality of Rule 8(3A) was examined by the Hon'ble High Court of Gujarat and it was held by the Hon'ble High Court that the Rule 8(3A) is unconstitutional and shall be rendered invalid. Respectfully following the judgment of the Hon'ble High Court I hold that the impugned order is not sustainable in law and therefore I set aside the impugned order with regard ....