1 OD - 22 IN THE HIGH COURT AT CALCUTTA SPECIAL JURISDICTION [CENTRAL EXCISE] ORIGINAL SIDE CEXA/2/2025 IA NO: GA/1/2025 COMMISSIONER OF CGST AND CX HOWRAH COMMISSIONERATE VS MS HINDUSTAN WINDOWS MFG CO BEFORE : THE HON'BLE THE CHIEF JUSTICE T.S SIVAGNANAM -A N D- THE HON'BLE JUSTICE CHAITALI CHATTERJEE (DAS) Date : 4th April, 2025. Mr. Uday Shankar Bhattacharyya, Adv. Mr. Kaustav Kanti Maity, Adv. …for appellant. The Court :- This appeal has been filed by the Central Excise department challenging the order passed by the Customs, Excise & Service Tax Appellate Tribunal, East Zonal Bench, Kolkata dated 24.7.2024 in Excise Appeal No.433 of 2011. The said appeal was filed by the respondent/assessee challenging the demand raised against them by denying utilization of Cenvat Credit for payment of duty during the defaulted period in terms of Rule 8(3A) of the Central Excise Rules, 2002. The learned tribunal after noting the facts of the case, referred to the decision of the High Court of Gujarat in the case of Indsur Global Ltd. vs. Union of India; 2014 310 ELT 33 (Guj.) which had declared the provision of Rule 8(3A) as ultra vires and the same was struck down. The said decision in Indsur Global (supra) was followed by the High Court of Punjab & Haryana in the case of Sandley Industries vs. Union of India, reported in 2 2015(326) ELT 256 (P&H). We also find the said decision was followed by the High Court of Judicature of Madras in the case of Malladi Drugs & Pharmaceuticals Ltd. vs. Union of India, reported in 2015(323) ELT 489 (Mad.). More recently, the High Court for the State of Telangana at Hydrabad followed its decision in the case of Commissioner of Customs, Central Excise & Service Tax, Hyderabad-I vs. Andhra Cylinders Pvt. Ltd., reported in (2023)12 Centax 94 (Telangana). Thus, in the light of the above decisions, the said rule is no longer in the statute book. The court is conscious of the fact that as against the decision in the case of Indsur Global Ltd. appeal was filed before the Hon’ble Supreme Court in Civil Appeal No.6652 of 2018 and there was an order of stay. Consequently, several courts had kept matters pending and in some cases the order passed by the learned tribunal was set aside and the case was remanded back to the learned tribunal to await the decision of the Hon’ble Supreme Court in Civil Appeal No.6652 of 2018. It has been brought to our notice that the Hon’ble Supreme Court by an order dated 29.7.2024 which passed an order for which the matter was referred to Lok Adalat and the Hon’ble Supreme Court has disposed of the Special Leave Petition and appeals on the ground that the tax effect of the subject matter of the Special Leave Petition and the appeal is falling below the threshold condition in Circular dated 22.8.2019 of the Central Board of Indirect Taxes and Customs. The learned senior standing counsel appearing for the appellant would contend that the case of Indsur Global Ltd. stands disposed of on the ground of low tax effect and, therefore, the department will be entitled to pursue the 3 present appeal. We are not inclined to accept the said submission for more than one reasons; firstly, the decision in the case of Indsur Global Ltd. as on date holds the field. Apart from that, at least four High Courts have struck down the very same decision and those decisions also hold the field since the concerned rule is a central statute and the effect of those judgments would be PAN India and would bind the department. For the above reasons, we find no grounds to entertain this appeal and the same is dismissed. Consequently, the application also closed. . (T.S. SIVAGNANAM) CHIEF JUSTICE (CHAITALI CHATTERJEE (DAS), J.) Pkd./S.Das AR[CR]