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KSM Earth Movers Versus The Deputy Commissioner of Central Excise

Maintainability of petition - alternative remedy of appeal - CENVAT credit - Held that: - when there is no challenge to the impugned proceedings on the grounds of lack of jurisdiction and the respondent having afforded an opportunity of personal hearing to the petitioner and whether it is to the satisfaction of the petitioner or not being a factual issue and in the absence of plea of malafide, the petitioner has to necessarily avail the alternative remedy provided - Further more, the nature of t .....

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16-8-2017 - T. S. Sivagnanam, J. For the Petitioner : Mr. S. Raveekumar For the Respondents : Mr. V. Sundareswaran ORDER The petitioner is a registered dealer on the file of the respondent under the Finance Act, and has filed this Writ Petition challenging an order passed by the respondent, dated 31.01.2017, in Order-in-Original No.3 of 2017. By the said order, the respondent disallowed a sum of ₹ 1,25,657/-, being ineligible CENVAT credit availed by the petitioner and ordered the same to .....

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preferring an appeal to the Commissioner (Appeals-I), Coimbatore. 2. The learned counsel appearing for the petitioner, after elaborately referring to the factual matrix, submitted that there is no specific provision under the Rules, which prescribes that credit can be claimed only for the purchases effected from the registered dealers and in the absence of enabling provision, the rejection of the credit is unsustainable. That the respondent failed to consider the various contentions raised by th .....

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Credit. In the instant case, the agent has raised the invoice and issued a certificate to the effect that the manufacturer, Hyundai Construction Equipment India Pvt., Ltd., had paid the excise duty under Rule 8 of the Central Excise Rules, 2002. Further, the decisions, which were relied on by the petitioner have not been considered and those decisions were placed before this Court to demonstrate that the impugned order is wholly untenable. 3. I have heard Mr.V.Sundareswaran, learned Senior Pane .....

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rved out exceptions and permitted parties to bypass the remedy provided under the statute and maintain a challenge by filing a Writ Petition under Article 226 of the Constitution of India. Thus the petitioner should be able to bring his case under any one of the exceptions, which have been carved out to maintain this Writ Petition despite of existence of an appellate remedy. 6. Admittedly, the petitioner does not question the jurisdiction of the respondent to issue the show cause notice and pass .....

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