2018 (5) TMI 1188

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....e appeals are being disposed of by this common order. Briefly the facts of the present case are that the appellants are manufacturer of spring leaves and are registered with the Central Excise Department for the manufacture and clearance of aforementioned excisable goods on payment of Central Excise Duty. During verification of ER-1's filed by them, it was observed that they have short paid central excise duty on the excisable goods cleared during certain months and subsequently had paid the short payments with interest after the lapse of more than 30 days from the due date of payment of duty. Further, it was also observed that for the subsequent months of default, they have utilized cenvat credit for the payment of central excise duty ....

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....d that the allegation against the appellant is that he has violated the provisions of Rule 8(3A) of the Central Excise Rules, 2002. He further submitted that this Rule 8(3A) has been held to be unconstitutional by the High Court of Gujarat in the case of Indsur Global Ltd. vs. Union of India reported in 2014 (310) E.L.T 833. He further submitted that Rule 8(3A) to the extent requiring the payment of duty without utilizing the cenvat credit during the period of default is held to be unconstitutional by several other High Courts also. He also stated that the decision of the Gujarat High Court was concurred by the Hon'ble High Courts of Madras, Punjab & Haryana, Allahabad and has been followed by the Tribunal in various decisions. Referenc....

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....duty; in such cases Rule 25 is not applicable for imposition of penalty. 4. On the other hand the learned AR defended the impugned order and submitted that the decision of the Hon'ble Gujarat High Court in the case of Indsur Global Ltd. has been stayed by the Hon'ble Supreme Court. Therefore, he submitted that the appellants are not entitled to any benefit. 5. After considering the submissions of both the parties and perusal of the material on record and the decisions relied upon by the appellant, I find that the Division Bench of Delhi Tribunal in the case of GEI Industrial System Ltd. after considering the various decisions of the High Courts and also the fact that the Supreme Court has granted a Stay Order in the case of In....