TMI Blog2017 (10) TMI 551X X X X Extracts X X X X X X X X Extracts X X X X ..... er and the reasoning of the CESTAT does not call for any interference - proceedings against the appellant are not sustainable - appeal allowed - decided in favor of appellant. - E/813/2011-SM - A/61926/2017-SM[BR] - Dated:- 19-9-2017 - Mr. Ashok Jindal, Member (Judicial) Shri R.P. Jindal, Consultant for the Appellant Shri A.K. Saini, A.R. for the Respondent ORDER Per : Ashok Jindal The appellant is in appeal against the impugned order wherein penalty of ₹ 10 Lakh has been imposed on the appellant and interest has been demanded for the intervening period wherever they paid the duty by utilising Cenvat credit account for payment of duty. 2. Brief facts of the case are that the appellant could not paid the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the submissions. It is an admitted fact that provisions of Rule 8(3A) of Central Excise Rules, 2002 has been declared ultra-virus by the Hon'ble Gujarat High Court in the case of Indsur Global Limited supra. The decision of the Hon'ble Gujarat High Court has been stayed by the Hon ble Apex Court as referred supra. Further, the issue came up before the Hon'ble Delhi High Court in the case of Space Telelink Limited in Central Excise Appeal No. 5 of 2016 and the Hon'ble High Court vide order dated 08.03.2017 observed as under:- 5. The Gujarat High Court took notice of the Revenue's contention with regard to the justification of Rule 8(3A). It was of the opinion that the restrictions imposed under the Rule w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble product immediately it makes the requisite declaration and obtains an acknowledgment thereof. It is entitled to use the credit at any time thereafter when making payment of excise duty on the excisable product. There is no provision in the Rules which provides for a reversal of the credit by the excise authorities except where it has been illegally or irregularly taken, in which event it stands cancelled or, if utilised, has to be paid for. We are here really concerned with credit that has been validly taken, and its benefit is available to the manufacturer without any limitation in time or otherwise unless the manufacturer itself chooses not to use the raw material in its excisable product. The credit is, therefore, indefeasible. It sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from existence. This means that if an order passed by the Appellate Authority is quashed and the matter is remanded, the result would be that the appeal which had been disposed of by the said order of the Appellate Authority would be restored and it can be said to be pending before the Appellate Authority after the quashing of the order of the Appellate Authority. The same cannot be said with regard to an order staying the operation of the order of the Appellate Authority because in spite of the said order, the order of the Appellate Authority continues to exist in law so lon ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
