Custom, Excise & Service Tax Tribunal
M/S Twenty First Century Wire Rods Ltd vs Commissioners Of Central Excise on 7 October, 2015
In The Customs, Excise & Service Tax Appellate Tribunal West Zonal Bench At Ahmedabad ****
Appeal No : E/301/2008 Application No : E/Extn/15608/2014
(Arising out of OIO-5-DEM-VAPI-2008 Dated 21/01/2008 passed by Commissioners of Central Excise, Customs and Service Tax-VAPI) M/s Twenty First Century Wire Rods Ltd : Appellant (s) Vs Commissioners of Central Excise, Customs and Service Tax-VAPI : Respondent (s) Represented by:
For Appellant (s) : Shri H.D. Dave, Advocate For Respondent (s): Shri Sameer Chitkara, Authorised Representative For approval and signature:
Mr. P.K. Das, Honble Member (Judicial) Mr. P.M, Saleem, Honble Member (Technical)
1.
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2. Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
No
3.
Whether their Lordships wish to see the fair copy of the order?
Seen
4.
Whether order is to be circulated to the Departmental authorities?
Yes
CORAM:
MR. P.K. DAS, HONBLE MEMBER (JUDICIAL)
Mr. P.M, SALEEM, HONBLE MEMBER (TECHNICAL)
Date of Hearing/Decision: 07.10.2015
Order No. A/11394 / 2015 Dated 07.10.2015
Per: P.K. Das
Heard both sides and perused the case records.
2. The appellants were engaged in the manufacture of M.S Ingots classifiable under Chapter 72 of the Schedule to the Central Excise Tariff Act, 1985. They were discharging duty on monthly basis under Rule 8 of the Central Excise Rules, 2002. After scrutiny of the record, it was found that the appellant defaulted to discharge the monthly payment of duty for the month of August 2006 to June 2007. The appellant paid the duty from the CENVAT Account during the defaulted period. The Adjudicating Authority confirmed the demand of duty by cash/P.L.A., which was paid from the CENVAT Account, in contravention of Rule 8 (3A) of the said Rules, 2002. It is also confiscated the goods cleared during the said period and imposed redemption fine alongwith penalty.
3. The Learned Advocate on behalf of the appellant submits that the Honble Gujarat High Court in the case of Precision Fasteners Ltd. vs Commissioner of Central Excise 2015 (316) E.L.T. 595 (Guj.) held that the Rule 8 (3A) of the said rules to the extent of the payment of duty without utilizing the Cenvat Credit is invalid. He submits that the Tribunal following the decision of the Honble Gujarat High Court in the case of M/s Indsur Global Ltd. vs Commissioner of Central Excise, Customs and Service Tax-Vadodara-II Vide Final Order No. A/1128-1135/2015 dated 17.07.2015 set-aside the impugned order on the identical issue.
4. We find that the Honble Gujarat High Court in the case of M/s. Indsur Global Ltd. vs UOI 2014 (310) E.L.T. 833 (Guj.) held as under:-
36.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 Rules, 2002, shall be rendered invalid.
5. In the case of precision fasteners Ltd. (supra) the Honble Gujarat High Court allowed the appeal of the appellant on the ground that the demand based of rule 8(3A) of the Rules 2002, which have been held as ultra virus. On a query from the Bench, the Learned Advocate submits that there is a contravention in payment of duty for the month of July 2006 to April 2007 and minimum penalty may be imposed. In our considered view, in view of the decision of the Honble Gujarat High Court, which has followed by the Tribunal in the various cases demand of duty cannot be sustained.
6. In view of the above discussion, we set-aside the demand of duty alongwith interest and confiscation of the goods and redemption fine. The penalty is reduced to Rs. 1,00,000.00. The appeal filed by the appellant is disposed of in the above terms. Miscellaneous Application filed by the applicant is disposed of.
(Dictated & Pronounced in open Court)
(P.M.Saleem) (P.K. Das)
Member (Technical) Member (Judicial)
govind
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