TMI Blog2017 (5) TMI 1338X X X X Extracts X X X X X X X X Extracts X X X X ..... applicable duties; the applicable duties have been discharged by the respondent by debit in the CENVAT account considering them as Central Excise duty. Appeal rejected - decided against Revenue. - E/30534-30535/2016-SM - A/30651-30652/2017 - Dated:- 12-5-2017 - Mr. M. V. Ravindran, Member (Judicial) Shri Guna Ranjan, Superintendent(AR) for the Appellant. Shri Y. Sreenivasa Reddy, Advocate for the Respondent. ORDER [Order Per: M. V. Ravindran] These two appeals are filed by the Revenue against the Orders-in-Appeal No.HYD-CEX-004-APP-054-15-16 DT. 29/03/2016 HYD-CEX-004-APP-055-15-16 DT. 29/03/2016. 2. The relevant facts that arise for consideration are that during the period in question i.e. April 2007 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the inputs removed as such if CENVAT credit is availed on them. Coming to such conclusion, duty liabilities were confirmed with interest and equal penalties were imposed. Aggrieved by such orders, the appeals were preferred before the first appellate authority. The first appellate authority after following the due process of law, set aside the demands holding that the inputs cleared as such from the EOU are to be cleared on payment of applicable duties and the applicable duties are nothing but Central Excise duty as per the provisions of Section 3(i) of Central Excise Act, 1944. To come to such a conclusion, he relied upon the decision of the Tribunal in the case of CCE, Vizag Vs. Matrix Laboratories Ltd. [2012(281) ELT 569 (Tri. Bang.)] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty which has to be paid by the assessee/respondent on duty free imported raw materials has to be in cash under the Customs head only and not as Central Excise duty. 3.2. He would submit that in view of the above, the impugned orders may be set aside and relies upon the decision of the Division Bench of the Tribunal in the case of Matrix Laboratories in Stay Order No.1471 dt. 28/12/2011 and submits that though it is a Stay Order, the ratio for arriving at ordering the pre-deposit would cover the issue in hand. 4. The learned counsel appearing on behalf of the respondent submits that factually the position is that inputs which were procured duty free could not be utilised and cleared to DTA after receiving requisite permissions and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ious parties and no objections were raised on this point during the relevant period. For which proposition, he relied upon the judgment of the Hon'ble High Court of Karnataka in the case of Swastik Engineering [2014(302) ELT 333 (Kar.)]. Further it is his submission that the reliance placed by the learned AR on the Division Bench order of the Tribunal dt. 28/12/2011 is a stay order and it is settled law that all stay orders are prima facie view and do not express final view on the issue. 5. After considering the submissions made by both sides and perusal of records, I find that the issue that falls for my consideration is whether the respondent was correct in utilising the CENVAT credit balance available with him for discharge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the provisions of Section 11A(1) / Section 11A(4) of the Central Excise Act, 1944 which would mean that there are demand of Central Excise duty; the said provisions of the Central Excise Act having been invoked in the show-cause notice, the utilisation of the CENVAT credit lying in balance cannot be called in question, as provisions of Rule 3(4) clearly indicate that the CENVAT credit balance can be used for discharge of any duty of excise on any final product or an amount equal to CENVAT credit taken on inputs for such inputs are removed as such or after being partially processed. Be that as it may, since there is a demand of Central Excise duty, CENVAT credit availed by the appellant lying in balance for utilisation of discharge of appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... customs constitute just a measure of the duty of excise to be paid on the DTA clearance. This legal position was settled by this Tribunal and appellate courts long ago. No overriding decision of any competent court to the contra has been cited before me. Respectfully following the same, I find that these Department's appeals are liable to be rejected. 8. Reliance by the Departmental representative on the Division Bench decision in Stay Order dt. 28/12/2011 will not carry the case of the Revenue any further inasmuch as it is settled law that the Stay Order which is passed by the Tribunal is a prima facie view which needs further confirmation in form of a Final Order. On a specific query from the Bench, it was informed that appea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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