The Commissioner vs M/S. Andhra Cylinders Pvt Ltd
2023 Latest Caselaw 2265 Tel

           THE HON'BLE SRI JUSTICE P.SAM KOSHY
                                 AND
THE HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
                         C.E.A.No.17 of 2020
JUDGMENT:(per Hon'ble Sri Justice P.SAM KOSHY)
            Heard Sri A. Rama Krishna Reddy, learned Standing

  Counsel for the appellant.

  2.         The instant appeal under Section 35H of the Central

  Excise Act, 1944 has been preferred by the appellant assailing the

  order of the Customs, Excise & Service Tax Appellate Tribunal

  (CESTAT) in final order No.A/30001/2020, dated 03.01.2020 in

  Appeal No.E/1108/2011, dated 03.01.2020.

  3.        The issue involved in the case was in respect of the

  default of monthly payment of duty and consequent denial of

  utilization of Cenvat credit under Rule 8(3A) of the Central

  Excise Rules, 2002 during the period September, 2009 to August

  2010.

  4.        Perusal of the record would show that the learned

  CESTAT has decided the matter taking into consideration the fact

  that four of the High Court's i.e. High Court of Gujarat at the first

  instance followed by the High Courts of Punjab & Haryana,
                                         2


      Madras and latest judgment being that of High Court of Bombay

      in the case of Nashik Forge Private Limited 1 , wherein these four

      High Courts have already held Rule 8(3A) of the Central Excise

      Rules, 2002 to be ultra vires. The High Courts have accordingly,

      struck down the said provisions holding it to be unconstitutional.

      That relying upon the aforesaid judgments of the four High courts,

      the appeal of the assessee was allowed vide the impugned order

      which was passed by the Commissioner, Customs and Central

      Excise, dated 28.01.2011.

      5.           It has also been reflected during the course of hearing

      that there has been no stay granted by the Hon'ble Supreme Court

      in respect of Judgments passed by the High Court's of Punjab &

      Haryana, Madras, and Bombay, inspite of the fact that the SLP's

      have been preferred by the Department before the Supreme Court

      and the latest Judgment of the High Court of Bombay being

      decided on 17.09.2018.

      6.           In view of the fact that four of the High courts have

      already declared the provisions of Rule 8(3A) of the Central


1
    [2019 (368) 20 (Bom.)]
                                     3


  Excise Rules, 2002 as ultra vires the Constitution and have also

  set-aside the order of the Commissioner, in the given factual

  backdrop of the case, the decision rendered by the Tribunal cannot

  be said to be in any manner arbitrary, illegal or contrary to law.

  Once the provision of law itself has been struck down not one but

  by four High courts, it would had been difficult of the Tribunal to

  have sustained the order of the Commissioner.

  7.         In view of the same, we do not find any substantial

  question of law made out calling for an interference with the

  impugned order.       The appeal thus fails and is accordingly

  rejected. No order as to costs.

             As a sequel, miscellaneous applications pending if any

  in this appeal, shall stand closed.

                                                      _________________
                                                       P.SAM KOSHY, J



                                        ________________________________
                                        LAXMI NARAYANA ALISHETTY, J

12.09.2023

myk/pvt

THE HON'BLE SRI JUSTICE P.SAM KOSHY AND THE HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

C.E.A.No.17 of 2020 (per the Hon'ble Sri Justice P.SAM KOSHY)

12.09.2023 MYK/PVT