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M/s Bright Engineering Works Versus Commissioner, Central Excise & Service Tax, Daman

2015 (9) TMI 201 - CESTAT AHMEDABAD

Cenvat Credit - Duty paying document - input services - sr. no was not pre-printed but hand written on Invoice - Waiver of pre deposit - Mandatory pre deposit - Held that:- Adjudicating authority disallowed the credit, following the decision of the Hon ble Andhra Pradesh High Court in the case of CHANDRA LAXMI TEMPERED GLASS CO. PVT. LTD. [2008 (7) TMI 257 - HIMACHAL PRADESH HIGH COURT] and the CBEC Supplementary Instructions. The learned Advocate relied upon the decision of Single Member Bench .....

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Mr. P. K. Das, Member (Judicial) And Hon ble Mr. P. M. Saleem, Member (Technical),JJ. For the Appellant : Shri S. Suriyanarayanan, Advocate For the Respondent : Shri Jitendra Nair, Authorised Representative ORDER Per: P.K. Das 1. The Applicant filed this application for condonation of delay of filing appeal of 27 days. 2. The learned Advocate submits that they challenged the impugned order before the Hon'ble Gujarat High Court. By judgment dt.30.03.2015, in Special Civil Application No.5118 .....

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appeal was filed after August 2014 and therefore, the Applicant is required to make a mandatory pre-deposit of 7.5% of the duty amount as a condition precedent as per amended provision of Section 35F of Central Excise Act, 1944. He submits that the Tribunal in the case of Maneesh Exports & Others Vs CCE Belapur 2015-TIOL-1093-CESTAT-MUM, following the various decisions of the Hon'ble High Court and particularly Hon'ble Andhra Pradesh High Court held that the amended Section 35F will .....

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5(V). He also relied upon the various decisions of Hon ble Supreme Court and Tribunal. 5. After hearing both the sides on the preliminary issue of maintainability of stay petition, we reproduce the observations of Hon'ble Gujarat High Court in the Applicant s own case vide judgment dt.30.03.2015 as under:- 2.00 At the outset, it is required to be noted that as such the question of pre-deposit is not the subject matter of the present proceedings and therefore, we refrain from making any obser .....

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the Kerala High Court in the case of Muthoot Finance Ltd (supra). 6. The Hon'ble Kerala High Court in the judgment in the case of Muthoot Finance Vs UoI (supra) held as under:- 4. I have considered the submissions of counsel on either side. I find that Ext. P8 is an order passed by the 2nd respondent, against which the petitioner has an alternate remedy under the provisions of the Finance Act, 1994, as amended to prefer an appeal before the Customs, Excise and Service Tax Appellate Tribunal .....

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ust 2014, the petitioner s right of appeal as per the erstwhile provisions of law would not be affected by the provisions introduced by the amendment of 2014. Although not expressly referred to in the interim order dt.19.02.2015 passed by the High Court of Telengana & Andhra Pradesh in WP 3393/2015, the view seems to be consistent with the settled law that the institution of a suit carries with it an implication that all rights of appeal then in force are preserved to the parties, thereto ti .....

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; Vitthalbhai Naranbhai Patel V. Commissioner of Sales Tax M P Nagpur (MANU/SC/0335/1960 : AIR 1967 SC 344) and Ramesh Singh and Another v. Cinta Devi and Others (MANU/SC/0402/1996 : 1996 (3) SCC 142). In that view of the matter, I find that the petitioner, in whose case also the lis commenced in 2012, would not be required to deposit the amount of 7.5%, as required pursuant to the 2014 amendment, and in that respect, he would have an efficacious alternate remedy before the Tribunal where he can .....

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at the appeal to be filed by the petitioner would be governed by the statutory provisions, as they stood prior to the amendment introduced with effect from 16.08.2014. Thus, without making any observations on the merits of the case, and without prejudice to ail the contentions that the petitioner can take against Ext. P8 order of the 2nd respondent, I dismiss the writ petition in its challenge against Ext. P8 order. I make it clear that, if the petitioner prefers a duly constituted appeal under .....

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the submission made by the learned Standing counsel for the respondents that, till 31.03.2015, no steps for recovery of the amounts confirmed against the petitioner by Ext. P8 order will be either initiated or pursued by the respondents. 7. The learned Authorised Representative strongly relied upon the decision of the Tribunal. We find that the Hon'ble Gujarat High Court in the Applicant s own case directed the Tribunal to consider the decision of the Hon'ble Kerala High Court decision o .....

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urt in the case of Muthoot Finance Ltd (supra), the preliminary objection of the learned Authorised Representative is overruled and we take up the stay petition for hearing. 8. After hearing both the sides and on perusal of the records, we find that the Adjudicating authority disallowed and confirmed the demand of CENVAT Credit of ₹ 1,60,93,316.00 alongwith interest and imposed penalty on the ground that the Appellant had availed the CENVAT Credit on the strength of the invoices of the ser .....

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ate of duty, quantity and value of goods and the duty payable thereon. The serial number shall commence from 1st April every year [beginning of the financial year]. 3.2 The serial number can be given at the time of pril1,ting or by using franking machine. But when the invoice book is authenticated in the manner specified in sub-rule (5) of rule 11, each foil of the invoice book should contain serial number before being brought into use. Hand written serial number shall not be accepted. 3.3 In ca .....

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