2018 (1) TMI 257

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....e of examination of ER-1 returns filed by the appellants for the month of April, 2007, it was observed that the appellant has shown the payment of arrears of duty payable by them as they have defaulted payment of duty for the month of February, 2007 and March, 2007 and they continued to utilize Cenvat credit account during the subsequent period and paid duty along with interest as duty paid with a delay. It was observed that in terms of Rule 8 (3A) of the Central Excise Rules, 2002, the assessee is required to pay duty in time but if same is defaulted, the assessee is required to pay duty on consignment wise during the period of default without utilizing the Cenvat credit account. Therefore, the proceedings were initiated against the appell....

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.... fraud, wilful mis-statement and suppression of facts, in that circumstance, the penalties under Rule 25 & 26 are not imposable on the appellants. Therefore, the impugned order is to be set aside. 4. On the other hand, Ld.AR supported the impugned order. 5. Heard the parties and considered the submissions. 6. Considering the basis of show cause notice is that during the defaulted period, the appellant has paid duty by utilizing Cenvat Credit account. The provisions of Rule 8 (3A) have been declared ultra vires by the Hon'ble Gujarat High Court in the case of Indsur Global Ltd. and the Hon'ble Delhi High Court in the case of Space Telelink Limited (supra), held that although the decision in the case of Indsur Global Ltd. has been st....