2018 (7) TMI 996

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....der Chapter 76 of the First Schedule to Central Excise Tariff Act, 1985. The appellant defaulted in payment of duty for the months of April and June, 2014. The default for April and June, 2014 was cleared on 10.07.2014 and 19.08.2014 respectively. The balance duty over and above what was paid through cenvat credit was paid in cash alongwith interest for such delayed payment. The Department was of the view that since the default in both the above cases continued beyond the period of 30 days, the provision of Rule 8(3A) of the Central Excise Rule, 2002 will come into play. Accordingly, Department was of the view that the appellant was required to pay duty on consignment basis without using cenvat credit on the clearances made during the perio....

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.... issue in identical circumstances, in favour of the assessee in the case of Ess Ess Kay Engg. Co. Pvt. Ltd. vs. CCE, Jalandhar -2018-TIOL-744- CESTAT-CHD. Accordingly, he prayed that the impugned order may be set aside and penalty may also be set aside. 5. Ld. AR justified the impugned order. He submitted that the impugned order has been passed in terms of the provision of Rule 8(3A) of the Central Excise Rules, 2002. 6. Heard both sides and perused the appeal record. 7. The crux of the present dispute is whether during the defaulted period, the appellant was entitled to make use of the cenvat credit for discharge of duty at the time of clearance of the goods from the factory. In the impugned order, the lower authority has held tha....

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....aw unless and until, the same is set aside, is not binding on us, therefore, the demands are to be set aside. Therefore, we hold that since utilisation of cenvat credit account, during the default period has been declared ultra vires, therefore the appellant has not violated the provisions of Rule 8(3A) of Central Excise Rules, 2002. If the availability of cenvat credit is taken into account, in that circumstances, no demand is sustainable against the appellant. Therefore, the demands confirmed by the impugned order are set aside. We further, hold that as appellant has paid the duty with a delay alongiwth interest, the payment of duty along with interest is correct and the same is confirmed. 7. In the impugned order, the goods were....