2023 (3) TMI 689

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....i S. Mukhopadhyay, Authorized Representative for the Respondent (s)   ORDER   The instant Appeal arises out of the Order-in-Original dated 11.11.2009/12.11.2009 pased by the Commissioner of Central Excise, Customs & Service Tax, BBSR-I confirming duty demand of Rs.1,02,94,904/- for contravention of Rule 8(3A) of the Central Excise Rules, 2002 read with Section 11AB of the Central Excis....

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....thorized Representative for the Department and perused the Appeal records. Ld.Authorized Representative for the Department supports the impugned order.   3. On going through the grounds of appeal filed by the Appellant, we find that the Appellant claims that they have already paid the Central Excise duty of Rs.1,02,94,904/-by debiting their Cenvat Credit account as under:- S. No. Period D....

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....tself, the duty payable on the goods cleared during the period from 05.08.2008 to 12.08.2008 was Rs.32,79,822/- only. It is further submitted that the Commissioner has wrongly taken the Cenvat Credit utilized in the entire month of August 2008 which was Rs.69,45,621/- instead of actual duty amount of Rs.32,79,822/-. Accordingly it is their submission that the demand could not have exceeded Rs.66,2....

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....in the case of Indsur Global Ltd. v. UOI [2014 (310) E.L.T. 833 (Guj.) has declared the words "without utilizing Cenvat Credit" under Rule 8(3A) as ultra vires which means that the assessee can discharge duty by utilizing Cenvat Credit which is what exactly has been done in the instant case by the Appellant.   7. We find that the said judgment has been followed by the Hon'ble Calcutta High C....