2018 (6) TMI 1347

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....at the appellant are engaged in the manufacture of excisable goods, viz., the Floor polishing, Room refreshners falling under Chapter 33, 34 & 38 of the Schedule to the Central Excise Tariff Act, 1985. They are availing the CENVAT credit of the duty paid on inputs used in their final products. On gathering intelligence that they were not discharging the Central Excise duty in respect of excisable goods manufactured and cleared during the period from December 2011 onwards, investigation was conducted by the officers of Headquarters Preventive Unit of Mysore Commissionerate. Investigations revealed that they have defaulted in payment of duties for the months of December 2011 and January 2012 and the same is required to be recovered as arrears....

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....d the material on record. 4. Learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without considering the facts and the law. He further submitted that the impugned order is contrary to the binding judicial precedents. The learned counsel further submitted that the provisions of Rule 8(3A) has been declared as unconstitutional by the Hon'ble High Court of Gujarat in the case of Indsur Global Limited vs. Union of India & 2-2014 (12) TMI 585 and CCE, Calicut vs. Southern Ispat and Energy Ltd.:2018 (5) TMI 1339 - CESTAT BANGALORE, wherein the Hon'ble High Court has held that "restriction imposed under sub rule (3A) of Rule 8 to pay the excise duty without availing CENVAT cr....

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....y. Insisting on an assessee in default to clear all consignments on payment of duty would be a perfectly legitimate measure. However, to insist that he must pay such duty without utilizing CENVAT credit which is nothing but the duty on various inputs already paid by him would be a restriction so harsh and out of proportion to the aim sought to be achieved, the same must be held to be wholly arbitrary and unreasonable. 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 Rule 8 of the Central Excise Ru....