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2018 (7) TMI 996 - AT - Central ExciseDefault in payment of duty - Demand of duty on consignment basis without utilising CENVAT Credit - Rule 8(3A) of the Central Excise Rule, 2002 - whether during the defaulted period, the appellant was entitled to make use of the cenvat credit for discharge of duty at the time of clearance of the goods from the factory? Held that:- The provision of rule 8(3A) has been the subject matter of much litigation. The Hon’ble Gujarat High Court in the case of Indsur Global Ltd. [2014 (12) TMI 585 - GUJARAT HIGH COURT] has held as ultra virus the provision of Rule 8(3A) - Similar view has been expressed by the Delhi High Court in the case of Space Telelink Limited [2017 (3) TMI 1599 - DELHI HIGH COURT]. The Delhi High Court has further held that even though the Gujarat High Court decision is stayed by the Apex Court in the appeal filed by Revenue, this does not deface the underlying basis of the judgement itself. The Tribunal in the case of Ess Ess Kay Engg. Co. Pvt. Ltd. [2018 (1) TMI 257 - CESTAT CHANDIGARH] has already taken the view that duty demands are not justified and also the penalties. Demand not justified - appeal allowed - decided in favor of appellant.
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